Cabinet Manual: Revision (Constitution Committee Report)
(1 year, 4 months ago)
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Baroness Drake
That this House takes note of the Report from the Constitution Committee Revision of the Cabinet Manual (6th Report, Session 2021–22, HL Paper 34).
Baroness Drake (Lab)
My Lords, the first and to date the only edition of the Cabinet Manual was published in 2011 by the Cameron Government as, to quote the Cabinet Office, a
“guide to laws, conventions and rules on the operation of government.”
Ten years on, in 2021, the Government advised, in a letter dated 5 March from Simon Case, Cabinet Secretary to the chair of the Public Administration and Constitutional Affairs Committee, that it did not plan to update the manual in the short term. The Constitution Committee decided to conduct a short inquiry to explore whether it needed to be updated, the process for doing so, how Parliament should be involved, and what role the manual should play as a public document.
To set the Cabinet Manual in its historical context, amidst allegations of misconduct in public life, the Committee on Standards in Public Life—the Nolan committee—was established by the former Prime Minister, the right honourable Sir John Major, to advise on how standards could be raised. The committee outlined the Seven Principles of Public Life, known as the Nolan principles, a set of ethical standards that those working in the public sector should adhere to.
The standards of conduct and behaviour to be adhered to by Ministers, parliamentarians and officials have been articulated in various codes, including the Ministerial Code, the Civil Service Code and the Code of Conduct for Special Advisers. They all explicitly incorporated the Nolan principles. They include enforcement mechanisms should breaches occur, which generally rest upon soft rather than hard-law remedies. The Cabinet Manual followed on from the publication of the codes. Initiated by the right honourable Gordon Brown and concluded by the right honourable David Cameron, it was inspired in part by the New Zealand Cabinet Manual.
The coalition Government published a draft edition in December 2010 for public consultation, including engagement with Select Committees in both Houses. The manual was endorsed by the Cabinet. It reaches across a wide ground: issues such as the monarchy, elections and government formation, the Cabinet, Ministers, the Civil Service, devolved Administrations, the EU, finances and public information, and more.
As to its status, the manual is intended to provide authoritative guidance to Ministers and officials by recording, rather than being the source of, rules and practice on the operation of government, and therein lies its value. It is a work of reference, recording, rather than prescribing, constitutional rules, including conventions and practices set out in official documents. It does not require behavioural standards beyond what is required by the codes or by law. Accordingly, it does not include enforcement mechanisms, although it broke some new ground with the content regarding elections and government formation.
As a matter of constitutional principle, ensuring adherence to the Cabinet Manual will ultimately be a matter for the Prime Minister. In 2011, both the Constitution Committee and the Public Administration and Constitutional Affairs Committee recognised that, while Parliament has
“a role in scrutinising the draft Manual and future revisions”,
it was for
“executive use and so should not require Parliament’s approval.”
However, the Constitution Committee recommended that the Prime Minister should make clear in the foreword to the next edition the duty on all Ministers to adhere to the constitutional principles contained within it.
For the Cabinet Manual to remain useful, it needs to be regularly updated. If out of date, it will lack authority, cause confusion and risk becoming moribund. As the noble Lord, Lord, Lord O’Donnell, wrote in his preface to the first edition:
“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.”
He added in his evidence to us that the manual was a
“valuable document … having one, as long as it is up to date, is very, very important for the business of government.”
Much has happened since the manual was published in 2011, including further devolution of powers, the UK’s departure from the EU and changes to the way Parliament is dissolved. Simon Case in his evidence concurred that the main changes would concern Brexit, devolution and repeal of the Fixed-term Parliaments Act. Most of our witnesses agreed that an updated manual was overdue.
The committee recommended that a draft update be produced as soon as possible, and not later than 12 months from the date of our report, and thereafter that updates be considered at the beginning of each Parliament, endorsed by Parliament, with important revisions reflected immediately in the online version. As with the 2011 edition, we recommended that the process include consulting on the revised version. Regrettably, 18 months later, there is still no updated edition.
The Government responded to the committee’s report in a letter from the noble Lord, Lord True, dated 7 February 2022, in which he comments:
“There is a strong argument for revisiting the Cabinet Manual, and there has been work to identify the main areas that would require updating … I can confirm that the Government intends to publish an updated version … before the end of this Parliament.”
I subsequently wrote to the Prime Minister on behalf of the committee, re-emphasising four of our recommendations which we considered the Government had not given a view on, these being: first, that the Prime Minister make clear in the foreword to the next edition the duty on all Ministers to adhere to the constitutional principles recorded within it; secondly, noting the significant constitutional developments since 2011 and given that an updated manual will serve to guide Ministers as to the constitutional rules pertaining both to recent developments and longer-standing constitutional matters, that it would be prudent to secure a high level of consensus on its content—the Constitution Committee, along with the relevant committees in the House of Commons, should be meaningfully consulted; thirdly, that consultation should include sharing draft revisions to allow for sufficient scrutiny and feedback; and, fourthly, that the Government should consult the relevant committees in the devolved legislatures in line with the Prime Minister’s responsibility
“to ensure that all of government is acting on behalf of the entire United Kingdom: England, Northern Ireland, Scotland, and Wales.”
The noble Lord, Lord True, subsequently replied:
“Our process for updating the Cabinet Manual, including any engagement, will reflect the extent to which significant changes are required or whether the updates are more limited in nature … On ministerial duties, when the first edition was published it was endorsed by the Cabinet. The then Prime Minister made it clear that he would expect everyone working in Government to be mindful of the guidance it contains. This remains the case.”
I ask the Minister to take the opportunity of this debate to update the House on the Government’s timetable for publishing a revised copy of the Cabinet Manual, the approach taken to that revision, and any plans the Government may have for consulting relevant committees of the House of Commons and the Constitution Committee and the relevant committees in the devolved legislatures.
Finally, I shall bring my speech to an end on a more philosophical note. Simon Case in his evidence on to our inquiry on the manual and codes observed:
“They set out, in any given moment, the norms by which government operates, the standard expected of Ministers and the Civil Service … They are important and should be kept at the forefront of people’s minds.”
A “but” followed:
“If we end up in a system in which it is only the letter of the law, or of the codes or the guidance, that runs, we have missed something. It is about culture and people wanting to uphold those basic principles”.
We agree with him on that. In a recent report, Good Chaps No More? Safeguarding the Constitution in Stressful Times, the noble Lord, Lord Hennessy of Nympsfield, a member of the Constitution Committee similarly observes:
“If general standards of good behaviour among senior UK politicians can no longer be taken for granted, then neither can the sustenance of key constitutional principles”.
As to the Constitution Committee, I refer to the sentiment in our concluding paragraph.
“Documents such as the Cabinet Manual, Ministerial Code and Civil Service Code are an important part of the United Kingdom’s constitutional framework. Together with the Nolan Principles, respect for the Manual and Codes is essential for upholding principles of good governance, including adherence to constitutional conventions and the proper conduct of public and political life. They are crucial to the wider national wellbeing as well as to the public’s trust in government. They must never be treated as optional extras to be swept aside or ignored to suit the convenience of the executive.”
I beg to move.
Lord Howell of Guildford (Con)
My Lords, I congratulate the noble Baroness, Lady Drake, on what she has just said and on securing a slot debating this issue. That we are debating it as the last item on a Friday afternoon before Christmas has some message in it, given that it is a key constitutional issue, but I leave noble Lords to deduce that for themselves.
I view this debate and the whole issue as a replacement exercise: we are searching for how to replace the standards, conventions and moral behaviour patterns of a past age with something new and more effective. The fundamental point, of course, is that the rule of law must apply to both rulers and ruled at all levels. That is why we know Soviet communism failed eventually and why Chinese Communist Party rule will eventually fail despite the brilliance of the Chinese people and their economy. The question for us is how to deal with this problem in an age of hypercomplexity and hyperconnectivity.
This search began in modern times back in the 1930s with Lord Keynes and his belief that his kind of modern economy and society would be run smoothly by educated administrators and enlightened governors all sharing the same principles and duties—a marvellously civilised and unprejudiced elite, mostly, by implication, from the middle class and public schools. I tried to expand on this in my book Freedom and Capital in the early 1980s, but we are told that Clive Priestley in the Cabinet Office first called it in 1985 “the good chaps theory of government”. More recently, that expression has been given wings brilliantly by that 21st century Bagehot, my noble friend Lord Hennessy, whom we are going to hear from shortly.
What it all boils down to is that there was assumed to be a certain unwritten exemplar of behaviour and decency in the way that government was conducted which there was no need to write down, but now, in this very different day, age and context, that no longer works. Hence the intensified calls to fall back on up-to-date written codes and guidance telling us how constitutional government works and what rules should be observed—and so enter the Cabinet Manual that we are now discussing, the Ministerial Code, the Civil Service Code and a whole host of other rulebooks.
The difficulty that comes, when you write everything down, is that it is full of subjective views and opinions. That is just where the present Cabinet Manual rests, with the Prime Minister’s deciding judgment about any transgressions, and it is why some people call for it to be put into statute law. If that is the next move, the trouble is that then come the judges, the judicial reviews and all the rest, bringing law into politics. That is where we are already, in fact, with judges facing impossible dilemmas: on the one hand, they have to implement the law as laid down not just by Parliament but by international norms, while on the other they face a body politic increasingly driven by populist instincts and inward-looking nationalist priorities and fragmented by identity politics and post-Brexit legal uncertainties.
Add to that the heaving sea of online connectivity, transparency, polarised opinion and the noise of argument about what is right and wrong, what are good and acceptable ways of carrying on and what are bad, with precious little prospect for common ground between the two. The uproar reaches a crescendo of accusations and rumours, with the rawest kind of partisan politics wading in. I think it was Jim Callaghan who once warned that a rumour can travel round the whole world before the truth can even get its boots on.
Small wonder, then, that with absolutely everything disputed—now even, heaven save us, gender—and everything up for grabs, demand grows for a better-codified order, revised and updated with renewed constitutional clarity. Incidentally, all this leads to a horrible atmosphere in and around politics in which people denounce each other as though in China, where the spy is watching at the end of the road, or recalling the French revolution’s chilling cry of “J’accuse” being enough to send someone to the scaffold—or at least, in modern terms, to suffer public pillorying in the media and banishment and dismissal, as recently occurred in the deplorable case of Conor Burns MP. Hence the understandable desperate impulse to write it all down.
However, one has to ask: will this desire to have the matter written down in letters of gold have any impact on standards of behaviour? Frankly, I doubt it, without huge changes of attitude and a perception of common purpose, which would make it all unnecessary anyway. We have enough rules and procedures written down already—codes of a sort.
By far the best course would be for pressure everywhere, in the media and Parliament, to ensure more honest presentation of the dilemmas and complexities of public life and governance. Leaders there must be, with impeccable standards—that is essential—but where we allow gigantic half-truths to prevail in public debate, that is where the dodging, weaving, dissembling and deviating begin and the arguments about rule-breaking in high places take centre stage. Examples are most vivid in the role of Parliament and its relations with the Executive and the judiciary; in what is guidance and what is law; in half-baked economic theories about how to stop inflation, where I think the public are being very badly misled; in how to stop the UK from falling apart—the devolution issue; in distorted ideas about levelling up; and in many more areas besides.
More honest debate over major issues, presented and explained, would produce the conditions in which little dishonesties and deceits were more rapidly exposed and discouraged, and honest government conducted strictly under the rule of law was delivered in a constitutional framework. Lord Denning reminded us:
“Be ye never so high, the law is above you.”
We should need no further codes or manuals to remind us constantly of that.
Baroness Warwick of Undercliffe (Lab)
My Lords, I thank my noble friend Lady Drake for introducing the debate in such a masterly way. The work of the Constitution Committee is largely unsung, but it provides a vital service to the House, and it reminds us, among other things, of the seriousness of our constitutional role. I will open my contribution as she ended hers. She concluded with a quote from the Cabinet Secretary on culture and referred to the role of the manual in the proper conduct of public and political life and to the public’s trust in government. I come to the report through the prism of culture to ask: what can the public expect from us as parliamentarians, and what behaviours are they entitled to expect? What are the cultural norms that generate trust in the public and the electorate?
I was a member of the Nolan committee, the first Committee on Standards in Public Life. I was invited to serve by the then Prime Minister, John Major, in the wake of the exposure of a number of dubious activities by Members of Parliament, culminating in the so-called cash-for-questions scandal that was perceived to threaten the stability of the then Government. My contact with parliamentarians until that point had largely been as an advocate, but I knew only a small number of MPs and committees, and I was definitely in awe of Parliament and its responsibilities. I remember the huge responsibility I felt, and how difficult but important the task ahead seemed. Nevertheless, the seven principles of public life which the committee produced have subsequently been embedded in the standards landscape across the public sector and elsewhere. In Parliament, they have required Ministers, parliamentarians and officials to adhere to certain standards of behaviour articulated in different codes and all brought together in the Cabinet Manual. As such, I feel a certain proprietary interest in how the manual is used and developed.
Perhaps I was naive in those early days, but I still feel the same awe at the importance of the concept of parliamentary democracy, have the same belief that parliamentarians must earn the public’s trust, and have the same respect for the many honourable, hard-working and inspirational parliamentarians I have known in both Houses. However, there is no doubt that, over the last few years, we have again seen an upsurge in dubious behaviour by Ministers and others— particularly during the crisis of the pandemic—which has been covered extensively in the press and is clearly causing concern among the public, potentially undermining their trust in the honesty and integrity of Parliament. An up-to-date and transparent Cabinet Manual is a key instrument in addressing that.
In its report, the Select Committee quotes the current Cabinet Secretary, Simon Case, and, like my noble friend Lady Drake, I will quote what he said, because it seems to be the essence of the Select Committee’s report. He said that the manual and codes
“set out … the norms by which government operates, the standard expected of ministers and the civil service … They are important and should be kept in the forefront of people’s minds … It is about culture and people wanting to uphold those basic principles”.
The Constitution Committee agreed, as my noble friend said in her introduction to the debate; as did two former Cabinet Secretaries, the noble Lords, Lord O’Donnell and Lord Sedwill. Simon Case added that it
“has to belong to the Prime Minister and Cabinet of the day, to articulate their view of how government should, and can, work”.
To my mind, it is important that the Prime Minister and the Cabinet have a contemporary understanding and agreement on how they are required to behave to generate public confidence, and that this is also widely understood. So, when I read the Constitution Committee’s report, I was forcefully struck by the stark fact that the Cabinet Manual has not been updated for 11 years. That is nothing less than irresponsible, given what seems like a tsunami of recent allegations of misconduct in public life, the kind of misconduct which the codes—which the manual embodies—are intended to address. The committee, with understandable constraint, merely cites a few in a footnote, but every newspaper reader is familiar with recent cases. They include: the finding by the independent adviser on ministerial interests that the then Home Secretary, Priti Patel, broke the Ministerial Code, but was exonerated by the Prime Minister; that there were investigations into the refurbishment of the former Prime Minister’s residence in Downing Street; that the same former Prime Minister nominated a life Peer, the noble Lord, Lord Cruddas, contrary to the advice of the independent House of Lords Appointments Commission; and that Ministers made misleading statements and relied on inaccurate statistics, and are not held to book. All that undermines public trust, and suggests, to paraphrase “Hamlet”, that the Cabinet Manual is less honoured in the observance than in the breach.
I am therefore pleased that the Government have accepted the recommendation of the Constitution Committee that the manual be updated before the end of this Parliament. However, I hope the Minister will go further today and agree that, in the interests of improving public confidence and reinforcing adherence to proper standards in public life, the manual will be updated at the beginning of each Parliament and endorsed by the then Cabinet. That will give some confidence that the manual and codes will not be, as the Constitution Committee warns,
“swept aside or ignored to suit the convenience of the executive.”
Lord Hennessy of Nympsfield (CB)
My Lords, I declare my membership of your Lordships’ Constitution Committee. In addition, I must declare an eccentricity, for I am one of a tiny number of people in the kingdom who experience a spasm of excitement when I hear the words Cabinet Manual. I do not wish to exaggerate, but a dash of curiosity laced with concern really does flash across my little grey cells. I am sure your Lordships think I should get out more, but it is the truth.
Why concern? The manual, after all, is not a written constitution in disguise; it is merely an Ordnance Survey map of proper expectations and decent behavioural norms for those set in authority over us. Yet this piece of cartography, this dully written collection of the codes—ministerial, Civil Service and special adviser—plus the Nolan principles of public life, is a crucial defence against any overmighty Prime Minister who is tone-deaf to the niceties of conventions and the self-restraint which lies at the heart of what an old Cabinet Office friend of mine, the late Clive Priestley, used to call the “good chaps theory of government”, as the noble Lord, Lord Howell of Guildford, reminded us. The core of Clive’s theory, which of course embraced chaps of both sexes, ministerial and official alike. is that they knew where the unwritten boundaries of decent behaviour were drawn and made sure they never came near, let alone crossed, them.
To avoid the Cabinet Manual being allowed to wither, decay and die through inattention or disdain is, in my judgment, a first-order matter. I am deeply grateful to the noble Lord, Lord True, who has a great knowledge of the constitution, for reassuring your Lordships’ Constitution Committee that this fate does not await the manual.
As one of nature’s herbivores rather than a political carnivore—to borrow Michael Frayn’s celebrated distinction in his essay on the Festival of Britain—I live in optimistic expectation that an enduring consensus can be built from the sturdy masonry of the concluding paragraph of the Revision of the Cabinet Manual report produced by your Lordships’ committee. Other noble Lords have quoted from it already, but it bears repetition:
“Documents such as the Cabinet Manual, Ministerial Code and Civil Service Code are an important part of the United Kingdom’s constitutional framework. Together with the Nolan Principles, respect for the Manual and Codes is essential for upholding principles of good governance, including adherence to constitutional conventions and the proper conduct of public and political life. They are crucial to the wider national wellbeing as well as to the public’s trust in government. They must never be treated as optional extras to be swept aside or ignored to suit the convenience of the executive.”
I finish with a thought on how our constitutional defences could be strengthened in future. In a short study I published a few weeks ago with my co-author and former student, Professor Andrew Blick of King’s College London, which we have titled The Bonfire of the Decencies: Repairing and Restoring the British Constitution, we press the case for a Prime Minister’s oath, which every new occupant of No. 10 would swear before the Speaker and the House of Commons. We would probably vary over what ingredients should make up a PM’s oath. Several would not be keen on the idea at all. It may strike others as an example of “good chappery”—a piece of political archaeology reflecting an era long past and kept going by a small number of elderly and nostalgic romantics—but I believe the idea has both timeliness and utility.
Professor Blick and I therefore suggested the following context: to uphold the principle and practices of collective Cabinet government; to uphold and respect the conventions and expectations contained in the Ministerial Code, the Cabinet Manual and Nolan’s Seven Principles of Public Life; to sustain the impartiality of the Civil and Diplomatic Services, the intelligence and security services and the Armed Forces; to have constant regard for the Civil Service Code and the special advisers’ code; to account personally to Parliament and its Select Committees for all of the above; and to uphold the rule of law in all circumstances. Such an oath would fit with our country’s instinct for incremental evolution when it comes to constitutional reform. It would strengthen our constitutional defences through its very existence. It is, in my judgment, both aspirational and practical, and a signal of good intent. I live in hope.
Viscount Stansgate (Lab)
My Lords, I am delighted to take part in this debate and have looked forward to it with the same sense of excitement that has just been expressed. I commend the Select Committee for its excellent report and my noble friend Lady Drake for the clear and comprehensive way in which she outlined its contents.
I hope the House will allow me to start with a personal tribute. In the short time since I was elected to this House, this is the first time I have had the pleasure of seeing the noble Lord, Lord Hennessy of Nympsfield, in his place. I hope I might call him my noble friend because, over many years, he has been one of the astute observers of what we might call the Westminster village, and his expertise and analysis has been universally acknowledged. His books and writings have made a tremendous contribution to our understanding of the constitution. I find, after the comments of the noble Lord, Lord Howell, that I am not the only person in the Chamber who feels that the noble Lord, Lord Hennessy, and Walter Bagehot would have found in each other the same sense of expertise in analysing the political world in which they lived. The way in which the noble Lord has promoted the “good chaps” theory of government is so important, particularly when we have lived through a period when that has been so severely breached, and we are still living with the consequences today.
I am not a member of the Constitution Committee, nor a former Cabinet Secretary or Minister. I am a Back-Bench Member of this House, but I am taking part in this debate because I have an interest in how this country is governed—this debate, if nothing else, is about how the country is governed.
I went to talk to a sixth form not all that long ago. I brought along a copy of the Cabinet Manual and said, “Here you are: you might like to look at this because it explains, in ways you may not realise, how this country works—or is supposed to.” I regret to say that they had never heard of it. Yet I feel that the document, and the updated document we all hope will result from this debate, should be available in schools, because it is part of our constitution.
I pay tribute to Gordon Brown for having been the one who, as Prime Minister, triggered this and to the noble Lord, Lord O’Donnell, for having drafted, written and produced it. The then Prime Minister of course continues to have an interest in the architecture of our constitution, and we will hear more about that in the future. I note that it is the view of the noble Lord, Lord O’Donnell, that the lack of an effective enforcement mechanism means that contravention may be merely political—there is no sense in which there is anything more formal than that. Of course, “merely” political can encompass a great deal of things. I am taken back almost 50 years to when I first came across a then secret document, Questions of Procedure for Ministers, which was a precursor to the Ministerial Code. I can report that it of course caused a great deal of tension between the then Prime Minister and a member of the Cabinet. Noble Lords do not have to listen to my account of it; they can read all about it in someone’s diaries.
I congratulate the committee on its report. It is not very long, but it encapsulates all the major issues arising. I hope that today’s debate will help to shape the way in which the Cabinet Manual can be updated and retain its role as a valuable document.
I hope that the House will not mind my regretting that it has taken a year and a half for this debate to come forward. I know that that is the fate of many Select Committee reports. Nevertheless, you could argue that the delay has enabled us to have an even more rounded view of the areas in which the Cabinet Manual needs to be updated. After all, since the Select Committee report was originally published, we have had three Prime Ministers and countless other examples of Ministers changing, with the greatest number of Ministers in a department in a single year. We have, I think uniquely, two resignation honours lists pending, and in an updated manual a place might be found for what you would do about that.
However, there is a broad consensus, which I endorse, that the most appropriate time to bring to a conclusion a review of the Cabinet Manual is in the gap between one Parliament and the next. That is certainly more sensible than doing it over the Summer Recess. Can you imagine someone trying to do it in the Summer Recess of 2019 or 2022? They would have found that most of their work was outdated by the time they had finished it.
I note that the Leader of the House, in his then capacity of Minister of State in the Cabinet Office, has said that the Government intend to publish an updated manual before the end of this Parliament. I wonder whether it will be sneaked out on Christmas Eve in 2024—we shall have to wait and see. There are a range of issues that the committee has identified as important enough to be included. A prime example is the repeal of the Fixed-term Parliaments Act, which I never liked or supported, and the way in which we have restored the essential flexibility to our parliamentary democracy. There are other examples as well. I cannot be the only Member of this House to take the view that the attempt of the then Prime Minister to prorogue Parliament for six weeks in 2019 was an astonishing breach of every convention encapsulated in the Cabinet Manual. There was nothing remotely “good chaps” about that.
Another example—there are several, and some have been mentioned in other speeches—obviously, is the effect of devolution in the 10 or 11 years since it took place. There is the fact that, in triggering Article 50, Parliament in the end needed to be involved; that needs to be reflected in the manual, too. Parliament’s role in agreeing military conflict and treaties needs to be updated. There are the obvious changes as a result of our leaving the European Union, some of which we do not yet know. I might add a couple of extra vignettes for the House. One was the need to update paragraph 1.8 of the Cabinet Manual, relating to counsellors of state, which, as the House knows, had to be updated because it was realised that the definition of “counsellors of state” as the next four people in line to the throne had become unworkable in the current circumstances. Anyway, we have now changed that and put it right. It might even refer to efforts to influence the size of the House and reduce it.
I know that it has been the opinion of many distinguished Cabinet Secretaries that this is an executive document and ultimately the preserve of the Prime Minister, but that should not preclude Parliament—and I mean both Houses—from playing a meaningful role in updating it. It is essential that Parliament updates it; the appropriate committees should have the right to be consulted and should reach a view on what the proposed update should be. I hope that the Leader of the House in his reply will at least convey an assurance that that will be undertaken.
Finally, I personally hope that one result of this debate will be to inject the Cabinet Manual with a renewed lease of life. I do not want it to be a polaroid snapshot; I want it to be a valuable document that continues to play a useful part in our efficient constitution, and not let it decay into becoming part of our dignified constitution.
The Deputy Speaker (Baroness Barker) (LD)
My Lords, the noble Lord, Lord Howarth of Newport, is taking part remotely, and I invite him to speak.
The Deputy Speaker (Baroness Barker) (LD)
My Lords, we cannot hear the noble Lord, Lord Howarth. I suggest that we move on to the noble Lord, Lord O’Donnell, and come back to the noble Lord, Lord Howarth, when the technical problems have been resolved.
Lord O'Donnell (CB)
I start by joining the noble Viscount, Lord Stansgate, in paying tribute to my noble friend Lord Hennessey of Nympsfield, who, I should stress, was a collaborator on the first edition of the Cabinet Manual. He was one of the academic experts whom we consulted about various constitutional matters, and he provided great advice to us. Indeed, he is associated very much with the “good chaps” theory, and I cannot think of anyone who is more the ultimate good chap than the noble Lord, Lord Hennessy.
It is interesting: the evolution of the Cabinet Manual is important. People have referred to John Major, and I was his press secretary when we went through the period of real concern. This led to the Nolan principles, which led to the publication of—people have probably forgotten this—QPM: Questions of Procedure for Ministers. These are things that go back a long way. People around the Chamber are nodding; it is good to see the experience that is here. So he started this process off of thinking about how we improve trust in politics by laying down some codes about ethical standards.
This is truly a cross-party venture, which is why, as a Cross-Bencher, I really welcome this. I was tasked by Gordon Brown—a Labour Prime Minister—to start this process. It came to fruition in 2011 with David Cameron as Prime Minister, who signed it off with the full support of the Deputy Prime Minister, Nick Clegg of the Liberal Democrats. It has always brought parties together in trying to come up with something which basically codifies where we are, in the absence of a written constitution, and can be a guide as to what constitutes good behaviour. I think people are trying to get it to do a little bit too much, and I will come back to that.
On the production of it, as the noble Baroness, Lady Drake, said, this was stolen with pride from New Zealand, which had done it before us. I say to the noble Baroness that this is an excellent report and I very strongly agree with its recommendations. The New Zealanders have an approach to updating their Cabinet Manual which is in line with what the report suggests. It suggests that you have an online edition and as legislation changes—for example, the repeal of the Fixed-term Parliaments Act—you amend that immediately so that there is always an up-to-date edition online and then, periodically, you get to have a major revision.
In the preface of my first edition, I wrote that
“it will need to be updated periodically”.
What terrible drafting—“periodically”—how vague can you be? I look back on that and I think that it could possibly be amended in 2024, which would be 13 years on. I remember being posted to the British embassy in Washington and waking up one morning surrounded by cicadas. These creatures burrow down and 13 years later they come up and they are refreshed; they run around, they have their lives, they mate and then they die. Their whole lives are six to eight weeks. If they can do it in six to eight weeks, I am sure the Minister can produce a new volume in good time.
The Cabinet Manual does need to be updated and there are key areas that people have talked about. There are obvious ones, such as Brexit and devolution. There are others that are not quite so obvious but are very important. During the coalition, we learned a lot about the way it operated. I had this brilliant idea of a coalition committee that would meet weekly—a complete waste of time. That was not the way it operated; we had bilaterals and a thing called the quad, which worked much more efficiently than the rather bureaucratic thing I had come up with, which was discarded and rightly so.
We need to think about the caretaker convention, which a lot of people have talked about. The devolution settlement has gone through some big changes. Big exogenous shocks—as we economists like to call them—such as Covid and the war in Ukraine have created all sorts of issues for the way in which government operates in crises. We need to learn from the experience of those.
On the point that a number of previous speakers have made, ethics more generally, of course, are absolutely crucial. It must be remembered that the Cabinet Manual brings together those codes and all those important things which are agreed. It is there as a work of reference. By creating a new one, you are given a stimulus to ask: are those existing codes right? Are the enforcement mechanisms correct? All those things are very important. The Cabinet Manual should be bringing all of those together.
Whose is it? That is very important. It is the Cabinet Manual, but it is also the Cabinet’s manual. It is owned by the Executive, but of course there should be extensive consultation with Parliament and Select Committees, as there was with the draft chapter on hung Parliaments, which we did before the 2010 election. That was really valuable.
There are trickier problems, which no one really wants to get into, but which I found very difficult when I did the first one. An example is conventions. When do precedents become conventions? When does someone breaking a convention mean that the convention no longer exists? We have had examples of all those things. I could not solve that, so good luck to all those trying to. It is tough, but there are important things that need to be highlighted there.
There has been great work from the Constitution Unit at University College London. I hope we can disseminate this. I am really disappointed by what the noble Viscount said about the school he visited. I went to Richard Challoner School in Merton, a good state Catholic school, where A-level politics students were learning about the Cabinet Manual. Taking a guess, maybe the school he went to was just taking parts of the curriculum.
We need to think about dissemination to a broader public. We have heard already that the word used was “dull”. It was indeed written very carefully and legalistically. I hope we can think about putting in some examples to make it come alive, and help a new generation understand it and feel encouraged about trust. The point is that we want to increase trust.
Again, I strongly recommend the report and thank the committee for it. A new version of the Cabinet Manual is essential. It is necessary, but not sufficient, for improving trust in our politics.
Lord Berkeley (Lab)
My Lords, I too congratulate my noble friend Lady Drake and the committee on this fantastic piece of work. It has also set alight a lot of wonderful comments from noble Lords in this debate, particularly about the need to move on from the era of “good chaps”. Nowadays many of us are not good and we are certainly not all chaps. We have to move on from that.
I want to give a small example of a failure of the Ministerial Code which reflects a complaint against the Prime Minister of the day. Maybe the noble Lord, Lord Hennessy, will have solved the problem when we hear more about his ideas, but it seems to me that we are ending up with the Prime Minister being judge, jury and defence. That does not help public trust.
I wrote to the Cabinet Secretary in July 2021, asking him to investigate allegations that Ministers had failed to comply with paragraph 1.3 of the Ministerial Code, by failing to give
“accurate and truthful information to Parliament”,
knowingly misleading Parliament and failing to be
“as open as possible with Parliament”.
I was complaining about the Department for Transport. It was very helpful, because the Cabinet Secretary passed the letter to the department for a reply, which was of course not very helpful, because it was a long letter of defence.
I thought I would have another go and asked the Cabinet Secretary what he was going to do about that. He said that he could not do anything because
“the decision to investigate matters, and on the appropriate action to be taken, lies with”
the Prime Minister. So I wrote to the Prime Minister, but of course I did not get a reply. I could try again a year later, but it comes back to the fact that, under the code, the Prime Minister is responsible for taking action, and he did nothing.
Other noble Lords have mentioned other failings and the allegations of Ministerial Code breaches within the last five years. I got rather a long list from the Library when I asked, which I found rather depressing. Noble Lords will know all about them: Michael Fallon, Priti Patel, Damian Green, Amber Rudd, Mark Field, Matt Hancock. I am not going to go into what each one of them was alleged to have done because it does not really matter—well, it does matter, but that is not the point of what I am trying to say now.
The worst examples were the allegations against the then Prime Minister about the cost of his wallpaper and things like that. Again, the subject does not matter particularly, but the question I have is about who deals with this. Who deals with the allegations of failure to comply, misleading Parliament, and so on? Is it the independent adviser or the ethics adviser? I do not think the present Prime Minister has either of those at the moment; maybe I am wrong about that, but if he has, we have not heard much about it. Who is responsible for making sure that these people’s advice is independent? Who enforces this?
When he comes to respond, my question for the noble Lord, Lord True, is this: who is actually in charge of deciding what the Prime Minister does and whether he or she responds, and of ensuring that action is taken? As my noble friend said in relation to the succession Bill a couple of weeks ago, it is all right if the Prime Minister is a good chap, or whatever the female equivalent might be, but some Prime Ministers, and some monarchs, have been seen to go mad, or something has gone wrong, and we need to have a way of solving this problem, even when the final decision is alleged to be at the top level. That is why I have great hope in the new ideas from the noble Lord, Lord Hennessy—maybe they will solve the problem.
The Deputy Speaker (Baroness Barker) (LD)
My Lords, we will try to re-establish a connection with the noble Lord, Lord Howarth of Newport.
Lord Howarth of Newport (Lab) [V]
My Lords, the Cabinet Manual is a guide to the operation of government —its laws, rules, procedures and conventions—primarily for those working in the Government. I understand that, at the time of its preparation and publication in 2011, it was also intended to be a work of reference and an educational instrument, as my noble friend Lord Stansgate just suggested, for all who wished to understand how our system of parliamentary government is supposed to work. For all the difficulties that the noble Lord, Lord O’Donnell, drew to our attention, the description of conventions that it contains is as important as the description of legalities. It describes not only the mechanics but the proper ethos of government. It should be a covenant between the Cabinet and the people, against which the conduct of our Government can be judged.
However, if the Cabinet Manual is not kept up to date, it ceases to have this value. The then Cabinet Secretary, the noble Lord, Lord O’Donnell, stated in his foreword to the Cabinet Manual in 2011—as he reiterated in his oral evidence to the committee—that its content must not be static. I am extremely sad not to have been able to hear his speech just now because of the technical problems we had, but we are deeply indebted to him for his achievement in bringing the 2011 Cabinet Manual to its birth. The Cabinet Manual must evolve to take account of new legislation, constitutional change, and developing precedents, procedures and conventions. Much has changed since 2011, including Brexit, further devolution and the repeal of the Fixed-term Parliaments Act, yet we have had no new edition of the Cabinet Manual.
The noble Lord, Lord Sedwill, told the committee that work was in hand before September 2020 to draft a new edition while he was Cabinet Secretary, as my noble friends Lady Drake and Lady Warwick noted. Simon Case, his successor, has recognised its importance in articulating norms, standards and culture, and has acknowledged the need for an update of the Cabinet Manual.
The noble Lord, Lord True, whose personal under-standing of and commitment to the proper principles of the constitution are exemplary, has told the Constitution Committee that the Government agree that the Cabinet Manual should periodically be updated and will publish an updated version before the end of this Parliament. However, the committee recommended that a draft should be published for extensive consultation no later than July 2022, and it is disappointing that this has not happened.
The recent chaos in Downing Street must have rendered it hard to produce a new version. That very chaos showed the need for the Cabinet Manual to be a living, current, familiar and respected account of constitutional propriety. Never was it more needed than in the period of serial abuse of the constitution by Prime Minister Boris Johnson. Mr Johnson has been powerfully arraigned by my friend the noble Lord, Lord Hennessy, and his co-author, Professor Andrew Blick, in their book The Bonfire of the Decencies. I strongly agree with the case they make there. My noble friend, as we all call him, spoke just now with restraint but powerfully in proposing the content of a Prime Minister’s oath.
For me, the principal items on the constitutional charge-sheet include: abuse of the prerogative in the unlawful Prorogation of Parliament; contempt for the rule of law in the disparagement of judges, moves to weaken judicial review, denial of the necessary resources for the courts and access to justice, and the brazen declaration of the Government’s intent to legislate in breach of international law; the dishonouring of the Government’s commitment to the treaty embodying the Northern Ireland protocol; habitual discourtesy to the devolved Administrations and evasion of the Sewel convention; repeated inclusion of Henry VIII clauses in legislation; suborning the independence of the Electoral Commission; publicly blaming officials for matters for which Ministers are responsible; providing incorrect figures to Parliament; circulating untruths in respect of the Chris Pincher case; and Mr Johnson’s repeated mendacity. These are all in blatant breach of Lord Nolan’s seven principles of public life and of the precepts of the Cabinet Manual.
We cannot assume that because eventually Mr Johnson was expunged from No. 10 by Conservative MPs, the stable has been cleansed. He is said to be biding his time before seeking to return to Downing Street—fantasy, perhaps, but there is reported to be a sizeable cohort of incorrigible Conservative MPs who want him back as party leader and Prime Minister. Meanwhile, their lost leader, notwithstanding that he is a sitting MP, is touring the world making a quick fortune.
I want to believe well of our present Prime Minister. I accept that he was ambushed when he found himself taking part in a law-breaking social event at No. 10. Perhaps it was unavoidable that he reappointed to government so many fellow travellers in Mr Johnson’s journey of constitutional abuse, but he should not have appointed to Cabinet some of the most egregious violators of the principles embodied in the Cabinet Manual and the Ministerial Code. It will be a fundamental test for Mr Sunak’s leadership to show that he fully understands and respects the values that should inform the operation of our government.
The maintenance of the proper spirit of the constitution depends not only on checks and balances but on the personal values of those who exercise power within it. It would be no different if we were to have a written constitution, as we see instantly if we look at the USA, President Trump and the Republican Party. For our unwritten constitution to function as it should, it requires that the participants—politicians, officials, judges, political journalists, party activists and voters— have an informed understanding of it and a moral commitment to it. The Cabinet Manual, in enabling that understanding, therefore needs both regular updating and vigorous publicity.
We are at a time of exceptional political disruption and dissonance, when many no longer find meaning and value in traditional institutions, significant numbers of young people are tempted to repudiate democracy itself, and populism and authoritarianism are beguiling. It behoves us to keep the storm-tossed ark of parliamentary democracy in good repair. A new Cabinet Manual can help to rehabilitate our constitution and our political culture.
Lord Etherton (CB)
I am very grateful for this 11th-hour opportunity to participate in this debate, initiated by the noble Baroness, Lady Drake. Much of considerable constitutional importance has occurred since the publication of the Cabinet Manual in October 2011, as has been referred to by many of those who have spoken today. It is therefore reassuring to know that there will be a revision to the code before the end of this Parliament. I am not a member of any committee that is likely to be consulted on any revision, so I wish to take this opportunity briefly to mention three matters that are not presently stated in the manual but which I suggest ought to be addressed in any revision.
The first two arise out of the two Gina Miller cases relating to Brexit. The second of those cases, concerning the lawfulness of the Prorogation of Parliament, made it clear that it is for the courts to determine whether in principle any exercise of a particular prerogative power by the Executive is or is not subject to the supervisory jurisdiction of the courts. It also confirmed that it is for the court to decide the limits of a lawful exercise of prerogative power.
The next point was anticipated by the noble Viscount, Lord Stansgate. In the first of the Miller cases, concerning the triggering of Article 50 initiating the departure of the UK from the EU, it was illustrated that it is for the courts to decide whether it is the Executive or Parliament which can exercise the prerogative power.
What those cases did not examine in any detail, but which marks the limits of outside control of parliamentary affairs and so is critical to the functioning of our parliamentary democracy, is the operation and effect of Article 9 of the Bill of Rights 1689. As your Lordships will be aware, that is the provision which stipulates that
“the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any … place out of Parliament.”
This too should be mentioned in any revision of the code.
Finally, any revision of the code ought to provide the opportunity for describing what is good or bad legislation in our parliamentary democracy, including, for example, skeleton legislation and clauses. This is a well-canvassed and often-repeated concern of this House, most fully addressed, in the previous Session, in the 20th report of the Secondary Legislation Scrutiny Committee and the 12th Report of the Delegated Powers and Regulatory Reform Committee. Revision of the code would provide an excellent opportunity to reach a consensus on this issue between government and Parliament.
Lord Hacking (Lab)
My Lords, I am speaking only through the helpfulness and alertness of the noble Viscount, Lord Younger, who noticed that I was attempting to speak. He said that if I did not make the right decisions in consulting the clerk and letting your Lordships know, I would not be allowed to stand now. I understand that I am now in the clear, particularly through the kindness of the noble Lord, Lord Wallace of Saltaire.
I have not studied this subject, but I have looked through passages in the Cabinet Manual. I looked in particular at paragraph 1.9, which deals with the problem of when the sovereign becomes incapacitated. If I remember my history right, only one monarch has been declared insane, with a regency then being set up. I think that was after King George III, when travelling in Windsor park, rested his carriage, got out and addressed one of the large oak trees as the King of Prussia. Thereafter, he was declared to be insane. However, he recovered from his insanity. I cannot find any provision in paragraph 1.9 or elsewhere in the manual about the processes that should be used when the sovereign recovers from his insanity. That is only a small measure.
Unfortunately, through a serious incapacity—being unable to walk more than five yards—I have been out of the House for three months. This is my first week back and this is the third excellent debate that I have listened to in your Lordships’ House. Since my period of incapacity, questions have been raised about our future. The big challenge for whoever replaces us is to provide intellect and intelligence in debate. This is the third debate I have heard this week, my first week back, which is in that category.
Lord Wallace of Saltaire (LD)
My Lords, I, too, start by welcoming the noble Lord, Lord Hennessy, back. It is tremendous to see him again. We have missed him greatly. I gather he was compared to Bagehot, not Dicey. I have also always doubted the value of Dicey as a constitutional expert since I first read his views on Irish home rule. They seemed to bias his entire approach to sovereignty, the rule of law and almost everything else. Unfortunately, he still takes rather too much credit for the values which some address to the idea of unified sovereignty.
I recall being one of those who in 1996 invited the then Peter Hennessy to give a lecture on how to form a coalition Government, just in case we needed to have some obiter dicta when it came to the 1997 election. Indeed, I looked in the Cabinet Manual again to see what it says about government formation because I note that the report says:
“it is in the processes of elections and the formation of government that the Cabinet Manual most often comes out and is used.”
That probably adds to the argument for wanting to update it in the coming period.
We may or may not be about to face an election that will not lead to an overall majority, but I think we are now clear that coalition does not lead to chaos and single-party government does not necessarily lead to stable government. We have had the chaos of single-party government over the course of the past year, and to move, perhaps, back to a coalition would at least mean that formal meetings would have to take place between both sides. We shall see.
There were a number of things that were not right in the coalition. Indeed, I remember an occasion when the Secretary of State of the department to which I was attached changed, and the new Conservative Secretary of State, who obviously had not quite understood what a coalition meant, said that he did not need to have ministerial meetings inside the department more than once every six weeks just before Commons Questions and appeared not to be at all fazed when I pointed out that I was there in the department partly to make sure that arguments between the two parties did not escalate to the quad. So, there were problems with the coalition, but it does suggest that stable government is one of the things that it produced.
I have just read the excellent review of Sebastian Payne’s latest book, on the rise and fall of Boris Johnson, in the House magazine, by my good friend, Keith Simpson, a stolid Conservative MP. He remarks on how shocked he was by the degree of chaos that existed in No. 10 and, in the heart of the chaos and the atmosphere, the belief that conventional rules did not apply to him. I have on my study table The Bonfire of the Decencies to read over Christmas, and I have no doubt that that will have more to say on the same subject.
We may now hope that, with the Sunak Government, the chaos will subside and we will perhaps return to the constitutional government which, in his accession oath, the King swore to uphold. One of the things that pained me over the past 18 months was to have to witness the noble Lord, Lord True, defending some of the chaotic and convention-bucking behaviour of the Government, which I suppose he felt he had to do. I also welcome him back to constitutional conservativism, and I am sure that he will feel much more comfortable in that position.
The UK is a parliamentary democracy, as the Cabinet Manual sets out. It is not a populist democracy in which the Prime Minister owes his accountability only to the people—whoever they may be. Government is a complex process in which dialogue with other parties and scrutiny by both Houses of Parliament, and by others, is a necessary part. That is part of the complexity in which we live. We know the damage that the populist surge has done to our convention-based parliamentary democracy, and the Cabinet Manual, as well as the Ministerial Code and the associated codes, are part of what has begun to set out those conventions rather more clearly than they were.
Although the noble Baroness, Lady Neville-Rolfe, has now gone, I cannot resist saying that I could not find anywhere in the Cabinet Manual a conventional principle that was quoted at me by the Cabinet Office some weeks ago as a reason why I could not put down an amendment—the principle of the indivisibility of the Crown. It was not a convention I had heard of before. The noble Lord, Lord Lisvane, assured me that it existed in the 17th century, but I am not sure that it needs to be referred to any longer now.
There is a range of things which we need to reassert as regards conventional behaviour, and we need to make sure that they are agreed among the parties. As the report says, it is important that this, as an operating manual,
“has cross-party recognition and political legitimacy.”
So consultation, as the Cabinet Manual is revised, is also an important point.
We recognise that, if there is a change of Government, in no time at all we shall have the noble Lord, Lord Strathclyde, leaping to his feet to tell us that they are behaving unconstitutionally, as he used to do. But he will need to be able to quote sources in order to be able to say that they are behaving unconstitutionally. The Cabinet Manual is, for that purpose, extremely important.
The noble Lord, Lord Howarth, mentioned many of the things that have gone wrong: the relations between Ministers and civil servants, which are worse than I can ever remember since I started my career; bullying and harassment, and low morale in the Civil Service; and breaches of conventions and codes in public appointments. That all now needs to be addressed. The noble Lord, Lord True, shakes his head but I hope he agrees that we need to make sure that the standards are maintained, even if he wishes to insist—I understand why he might wish to try to do so—that these standards have not been breached as badly as we all consider them to have been.
There seem to be some incremental changes which we could pursue. Training for Ministers is desirable. The Institute for Government is developing some, and training for the Opposition and before an election is clearly an important part of that. A reduction in ministerial churn is vitally important. One of the things that is most unfortunate about the culture of government is that ministerial reshuffles have now become an aspect of party management, so that many Ministers are not in office for more than about nine months at a time, when we all know it takes 18 months to two years to master a subject when you are in office. Let us hope that ministerial churn will now be resisted.
I very much appreciate the suggestion of a prime ministerial oath, and I hope that that will be pursued further. A new Parliament will need to look again at the whole concept of the prerogative and how far prerogative power now extends. There were a number of Commons Select Committee reports on that in the late 2008-09 period, and it is time for us to go back to that.
I hope that noble Lords will be looking at the Private Member’s Bill in the name of the noble Lord, Lord Anderson, on public service, ethics and integrity. It is unfortunately rather low down the list of Private Members’ Bills at the moment, but it sets out a process whereby we would make the independent adviser to the Prime Minister, the House of Lords Appointments Commission and the Advisory Committee on Business Appointments more statutory and firm in their basis. Those are incremental changes that we could make, but let us start with a clear commitment that the Cabinet Manual will be revised before the end of 2024, that there will be adequate consultation with committees in both Houses and with the Opposition, and that we are returning to constitutional government.
Lord Collins of Highbury (Lab)
My Lords, I too thank the committee for what I was going to call its timely report, but of course it has been published for some time now. I am extremely grateful to my noble friend Lady Drake for her excellent introduction to what is a relatively short and concise report. Its recommendations are pretty concise too. The fundamental question to which I hope the Minister will be able to reply is the one on timetable and consultation; he has already conceded that there will be a revision.
As the noble Lord, Lord O’Donnell, correctly said, one of the problems is this “from time to time revision”. But we now have the relevant technology, and in the previous debate we talked about how technology can be used for efficient government. One way to do that, as it is a manual and not a code, would be to revise it on a weekly basis, which could be done. There is no need for a delay, especially as it does not need the sort of approval that a code might need.
As the noble Lord, Lord Hennessy, said, the manual is a survey map of existing codes and laws. I too welcome back the noble Lord; I am pleased to see him here. One of his excellent skills was being able to sit down with me and make sure I gave him all the secret information I could from my conversations in the party and within politics; he is very good at that.
We have talked about the connections of codes, the Nolan principles and why they were developed, and where boundaries are drawn. I was struck by the reference made by the noble Lord, Lord Hennessy, to “good chaps” government. As a historian, where do you learn most about what happened? I do not think you learn from codes, laws and manuals. As the noble Lord knows, we learn the most from the published diaries of politicians. I have mentioned on previous occasions that I am currently ploughing my way through three volumes of Chips Channon’s diaries. If anyone wants to know about hypocrisy in Parliament and among politicians, they should certainly read that. Having failed to do so on previous occasions, I pay tribute to Simon Heffer, who has done an amazing job of editing those diaries, making sure that for all the nasty references there are good footnotes. One amazing thing is that I have been able to speak to many noble Lords in this House about what was said about their families.
It comes back to the fact that our system of government has become far more transparent, and the transparency that we now have places a bigger obligation on us to abide by codes of practice. In the past, the things that Chips Channon talked about would never have been published, especially as most of the media that people read at that time was controlled by six of the politicians who were in this House. It is an amazing thing that we now have to face up to; that transparency places an obligation on us all.
I like the idea the noble Lord, Lord Hennessy, had for an oath. We would expect every Prime Minister to abide by certain standards—it is a given—especially the Nolan principles. An oath places greater transparency on the person; the public would know that certain behaviour is not acceptable and that that person is breaking it. One of the issues of a written manual is the point that the noble Lord, Lord O’Donnell, mentioned: when does a precedent become a convention? That is a difficult one. I was listening to a Radio 4 programme “Archive on 4” about when an original phrase becomes a cliché. The issue is when it is repeated, and that is what we have to expect. Some of the best speeches are now clichés if they are repeated often enough.
The noble Lord, Lord Wallace, talked about stable government and coalitions. In Chips Channon’s diaries you learn a lot about the coalitions in our political process, which are not coalitions formed from different parties. The biggest coalitions we have in our political system are political parties themselves—which is why we have many of the problems. One of the tensions in our parliamentary democracy—I suppose I am entitled to say this—is that the political parties have to learn the lesson about the temptation to engage with their party memberships on how they elect their leaders. It imposes all kinds of problems on our parliamentary democracy in terms of collective responsibility. I said in an earlier debate that I was old-fashioned new Labour. Some things we have to learn from. I do not suppose that the Conservative Party will be too tempted to turn to its party membership again to elect a Prime Minister. Of course, that is what we are doing when we elect leaders of our political parties.
To return to the point made by the noble Lord, Lord Wallace, on coalitions, one of the problems with coalitions is that with a single-party coalition at least we know who takes responsibility when things go wrong but with multi-party coalitions parties never want to take responsibility when things go wrong. I certainly found that with the Liberal Democrats, but I am sure the Minister will remind us of that.
Lord Collins of Highbury (Lab)
In conclusion, this is a good, straightforward report, which requires a straightforward response. One thing about the standards of Prime Ministers is the question of the independent ethics adviser, which I know the Minister has responded to. In a previous debate, we had a long debate with his ministerial colleague, the noble Baroness, Lady Neville-Rolfe, about the problems of recruitment in the public sector. This is certainly one post which seems to have a big problem with recruitment. Why has it taken so long? It is a very important part of the range of codes and responsibilities. Issues are now not being addressed by an ethics adviser—who should have been appointed—but we are getting to the stage of employing casual labour, as it were, to do the job. If there is a specific complaint, they bring in someone to deal with it. Surely that cannot be right. We need somebody who can be properly held accountable. I hope that the Minister will respond not only on the timetable on the Cabinet Manual but on the timetable for appointing an ethics adviser to the Prime Minister. We have waited too long for that.
The Lord Privy Seal (Lord True) (Con)
My Lords, it has been a fascinating debate. I am glad—well, not glad—that I gave the elbow to my noble friend Lady Neville-Rolfe. I was going to relieve her from doing two debates in succession, but then I find that the noble Lords, Lord Collins and Lord Wallace, are such Stakhanovites and polymaths that they have been doing continuous debates.
I start by saying that the Cabinet Manual is a document of fundamental importance and the report by the Constitution Committee is one of significance and importance, which this Government take extremely seriously.
I will say one other thing in preamble. I think it was the noble Lord, Lord O’Donnell, who said that this had to be shared across all parties. The noble Lord, Lord Wallace, was also very strong on that point, rightly. These are principles that we should all share and, in a sense, politics should come into it less. I was particularly fascinated by the speech of my noble friend Lord Howell of Guildford, who, from a perspective of enormous experience, spoke of some of the difficulties in codifying matters and some of the problems that can arise from that.
There is this idea that government of good chaps, chapesses or whatever they are has gone and that this era can never return. In my personal belief, most people in Parliament, whatever we say about each other, stand on their honour and are honourable people. Whatever defences, additions or props we put into place, the principle of being good and honourable should not be gone and forgotten. It remains.
I remind noble Lords, some of whom sometimes think there was a Garden of Eden before my right honourable friend Mr Johnson became Prime Minister, that there was a serpent in the Garden of Eden. My Christmas reading will include the latest biography of Sir Charles Dilke, as I must remind the noble Lord, Lord Wallace.
Let me get on to the matter at hand. A number of specific suggestions and points that should be taken up were made in this debate. The speeches of the noble Viscount, Lord Stansgate, and the noble and learned Lord, Lord Etherton, raised some specific issues. Detailed points were made and that has been one of the more precise values of this debate. Given the variety and number of specific suggestions made, today and in various committee reports since the manual was last published—although I know the House appreciates that time is needed to consider the right approach on each detail of the manual, outside the normal convention that one may sometimes write in response to noble Lords—I assure the House that the officials responsible will review the debate in Hansard and consider the specific suggestions put forward to inform the drafting approach and content.
I thank the noble Baroness, Lady Drake, for tabling this Motion in her role as chair of the Constitution Committee. I also extend my gratitude to the other members and clerks of that committee for the report, and to the former chair of the committee, the noble Baroness, Lady Taylor of Bolton, for guiding this work. It is clear, concise and comprehensive, and the evidence-taking was also fascinating and brought insightful thoughts to bear on the problem and contents of the Cabinet Manual.
I repeat what I said at the start: it is an important document for Ministers and officials, and the single reference document that sets out the rules, conventions and practice that affect the operation of government. In opening the debate, brilliantly and lucidly, the noble Baroness, Lady Drake, said it is a work of reference and therein lies its value. That was the general feeling of all who spoke.
I greatly commend the noble Lord, Lord O’Donnell, for enduring his tenure as Cabinet Secretary and for leading the charge. As Geoffrey Chaucer was to English poetry, so the noble Lord is that process. He himself said that it is primarily a guide for those working in government. In his first preface, he talked about
“recording the current position rather than driving change”.
However, the current position today is not the position that was current in 2011; therefore, an update is clearly needed. The Government have committed to producing an update of the Cabinet Manual before the end of the Parliament—I am conscious that some of that was in either my pen or my words, or probably both—and work is ongoing to achieve that objective.
I apologise for the delay in some respects; but, in other respects, there has been a very great deal of change, as noble Lords have said, including very fast change in recent times. There was an aspiration, as has been referred to in the debate, to share updates with the Public Administration and Constitutional Affairs Committee in the other place before the end of June. Since then, there have been two changes in Prime Minister and a demise of the Crown, followed by a period of national mourning, which Cabinet Office officials played a key role in co-ordinating. So there is some pretext for the delay, but I repeat what the Government have said: we will provide an update to the Constitution Committee in the new year and we will provide further details on timelines. Work is going on to identify what needs to be done and where updates need to be. There will be very small amendments on some chapters, whereas some other chapters, as has been referred to, will require major changes and indeed total rewriting on subjects such as the duration of Parliament, relations with the EU and so on.
The original intention was to update routinely and periodically, as the noble Lord, Lord O’Donnell, reminded us. There is a case for doing so. Over time, it has historically been a matter for the Prime Minister of the day, acting on the advice of officials, to judge when best to undertake a change. So I am loath to commit future Governments to a decision on their approach; that would be a decision for the Government of the day when assessing their priorities. However, this Government will produce an update of the manual according to timelines which, I have said, will be shared shortly.
In November, my right honourable friend the Chancellor of the Duchy of Lancaster wrote to the chair of PACAC in the other place to confirm that the Government will provide an update on that work to the Select Committee in 2023. That will include detailed arrangements on consultation, because I agree with noble Lords that there has to be some opportunity for consultation on such an important document. I can tell your Lordships that it is the Government’s intention to ensure that a similar update is provided to the Constitution Committee in this House so that it is aware of the upcoming stages and timings of that very important project.
The noble Baroness, Lady Drake, the noble Lords, Lord Wallace and Lord Collins, and others asked about the extent to which the Government plan to consult Parliament on the draft that is being produced. Obviously, there was a consultation on the first edition. I mentioned in correspondence with the noble Baroness, Lady Drake, and it is worth repeating today, that there are differences between the project in 2010-11 and today. One was ab initio—sorry, I am not allowed to use Latin in Parliament any more; one was starting off—and this one is updating. Any engagement on the updates will reflect the extent to which significant changes are required or whether the updates are more limited in nature. I very much take the point and will take it back to colleagues. The Government will also clarify this, including which sections of the manual will be shared in draft form, in the new year.
The Government share the view of the Cabinet Secretaries who gave evidence to the Constitution Committee for this report that Parliament should be consulted, although not invited to endorse the updates. The Government also recognise the value of developing a degree of consensus—a word that the noble Lord, Lord Wallace, referred to—in the language used in the manual, so that it continues to be an accepted and authoritative source on conventions and practices of government that should be widely shared.
The work to update the manual began in February 2022, when I confirmed to the Constitution Committee that an update would be published before the end of this Parliament. Officials then undertook a scoping exercise to determine where the manual had become out of date, as well as drafting initial updates to address factual inaccuracies. As I implied earlier, the updates will clearly be more substantive in some areas than others—for example, chapter 2 on government formation, chapter 8 on devolution and chapter 9 on relations with the EU and other institutions. A number of government departments and bodies have been involved in identifying and drafting updates. As I said, I hope we will be able to issue more information on progress shortly.
I was asked about the duty of Ministers and Prime Ministers to uphold the manual. The duties on Ministers are laid in the Ministerial Code, which is reflected in the manual. It is something of a circular argument to take one, which is an advisory and descriptive document, and make that the source of discipline. The duty on Ministers flows from the Ministerial Code; the manual is a guidance document rather than a code. When the first edition was published, it was endorsed by the Cabinet and the then Prime Minister made it clear that he would expect everyone working in government to be mindful of the guidance it contains. This remains the case.
The noble Lord, Lord Berkeley, and others inquired about the role the Prime Minister has in the manual. As a document owned by the Executive, the next edition of the manual will be approved by the Prime Minister before it is published. The noble Lord, Lord Berkeley, went to wider questions about the accountability of the Prime Minister, also touched on in a slightly more pacific vein by the noble Lord, Lord Hennessy of Nympsfield. I also am so delighted to see him in his place.
I rebuke nobody, but in our zeal to condemn Mr Johnson, who I still count as a friend, we should sometimes remember—we talk of convention—section 4.50 of the Companion, which says that no MP should be referred to
“for the purpose of criticism of a personal, rather than a political, nature.”
Many noble Lords will feel that there is huge scope for criticising Mr Johnson politically, but in the context of how we behave we sometimes need to think very carefully about those words. By the way, I totally acquit the noble Lord, Lord Wallace, on this point today.
The noble Lord, Lord Hennessy of Nympsfield, raised the idea of an oath. I will not give an extemporary response on this because I might get into trouble, but it is initially unclear to me that taking an oath in itself would go beyond the high levels of accountability—to reply to the noble Lord, Lord Berkeley—that the Prime Minister has. He is accountable to Parliament and the electorate, and can be brought down by Parliament and the electorate. Like any other of us, the Prime Minister also takes an oath to bear faithful and true allegiance to the monarch, and therein lies a high duty incumbent on the Prime Minister, above all, to act properly as the sovereign’s principal adviser.
It was suggested that the Cabinet Manual might be placed on a statutory footing, but only in passing, I think, in one intervention, which I have forgotten to note—I apologise. The Government do not believe that the manual should be placed on a statutory basis for the reasons that go along with the point that it is not the source of discipline. Also, we are, for the reasons asserted by my noble friend Lord Howell of Guildford, nervous about moving towards a codification of principles.
I thought that a very important strand referred to by the noble Viscount, Lord Stansgate, and the noble Baronesses, Lady Warwick and Lady Drake, is that the manual has an important role to play in being a useful and informative guide for the public. That includes schools, as some noble Lords said. I believe, as the conclusion to your Lordships’ committee’s report put it, that documents such as the Cabinet Manual are
“crucial to the wider national wellbeing as well as to the public’s trust in government.”
I agree with those sentiments, which were taken up by others. The manual can and should have a role in educating the public on the operation of government. The Government have noted the idea of producing a more accessible online version and understand the value of having updates available promptly online, while also producing a formal update as a new edition. We are committed to ensuring that it should be accessible to a wider public and that it should be drafted with the wider public in mind as a reader. The Government will therefore consider how best to make the manual acceptable to all.
I was asked by the noble Baroness about the devolved legislatures’ role in reviewing the manual. It was a recommendation in your Lordships’ committee’s report that the Government should formally consult the relevant committees in the devolved legislatures, as well as Parliament, when they produce an update. I know that the noble Baroness, Lady Drake, raised that matter in a letter to the Prime Minister earlier this year; indeed, she referred to it in her excellent speech. Much of the Cabinet Manual is on matters specific to the UK Government and on reserved matters. It is a UK document signed off by UK Ministers accountable to the UK Parliament. We always seek to work constructively with the devolved Administrations, but how the Scottish Government, the Senedd and Northern Ireland Assembly—the devolved Governments—will be engaged in the process will be taken nearer the time on the basis of the nature of the proposed changes in particular chapters.
It is time that I closed. I apologise for replying at some length, but that should reflect the importance of this document—it is an important document. If I am allowed to venture an opinion, since I have been a Minister only for a couple of years, I think it is a great pity that it was not revised before. However, I have every confidence because I have now served under three Prime Ministers, and they have all been interested in getting this job done. We will get it done.
This document is important, and I hope that its successor will be equally important in describing our country’s complex and rich constitutional arrangements for the benefit of all. It should not be treated as an optional extra that an Executive might ignore. I agree with the assessment of the Constitution Committee. The manual is a central guide for the operation of government and the Government are committed to ensuring that that remains the case for the next decade. We have been, and remain, committed to producing an updated edition before the end of this Parliament, but I hope to have some updates in the new year on timelines, which may be able to improve on that.
I thank again all those involved in the drafting of your Lordships’ committee’s report, and in the arrangement of this debate. I have seven seconds left—but can I briefly say as Leader that I am conscious that Select Committees have often found it difficult to get debates on the Floor of the House? I am glad that we are debating three today, although I am sorry that it is a Friday, but I hope that with the usual channels we can improve on that. I am sorry about it.
I get my seven seconds back now by saying that I hope that the Government will be able to cement the manual’s place in future as a useful guide for Ministers, officials and the general public. That is our common aspiration, and I believe the common aspiration of all of us across all parties who have spoken in this debate.
Baroness Drake (Lab)
I thank the Minister for what I believe is a positive reply. I welcome his acknowledgement of the importance of the manual and that he takes the committee’s report seriously. I agree with him that, in revising the manual, all the parties should seek to embrace the principles that we all share rather than having a narrower political debate. It was interesting that my noble friend Lady Warwick referred to the committee’s report as having understandable constraints by delegating to footnotes particular illustrations of instances of behaviour. It is in the nature of the Constitution Committee to be restrained or constrained so that, when we bring constitutional issues to this House to consider, it has more authority in doing so.
I welcome the fact that we will get an update in the new year. Perhaps the issue of the devolved legislatures is something for further discussion, but I thank the Minister and all noble Lords who have contributed today. It was an excellent debate, and I have certainly developed my thinking on the basis of the contributions. I was particularly pleased to see the noble Lord, Lord Hennessy, in his place, because I am aware of the personal barriers that he has had to manage to be here. His wit and wisdom are so valued, and I keep coming across ever greater numbers of senior civil servants who at some point were tutored by him, which is sometimes reflected by what they say. We have a lot to thank him for in terms of civil servants, from what I hear.
What was clear that came across in the debate today was a common view that the Cabinet Manual and the code are essential for upholding the principles of good governance, but they are inseparable from a culture whereby people want to uphold the good and right principles. They have to go hand in hand. Although I know that the noble Lord, Lord Howell, has a sense of pessimism about standards, I tend to be with the noble Lord, Lord True. There are lots of good people, and sometimes the challenge is to help them to behave as good people. That is a real issue before us.
I am conscious of the time, and shall not cover all my points. I thank the Minister and everyone who has contributed. I am sure that the Constitution Committee will be pleased to further engage and will be pleased with the debate and its content.