The Cabinet Manual

A guide to laws, conventions and rules on the operation of government

Introduction

I recently finished reading the UK Government Cabinet Manual. It’s a fascinating document described like this on GOV.UK:

“The Cabinet Manual gives an overview of the UK system of government, including how the Executive – the government and the civil service – relates to Her Majesty the Queen, devolved administrations and international institutions such as the European Union (EU). It reflects the importance of Parliament and Cabinet government, and the democratic nature of the UK’s constitutional arrangements.

The Manual is primarily intended to provide a guide for members of Cabinet, other ministers and civil servants in the carrying out of government business, but will also serve to bring about greater transparency about the mechanisms of government.”

The document was written by former Cabinet Secretary Gus O’Donnell, who is quoted in the document saying:

“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.”

In Prime Minster David Cameron’s introduction he says:

“I expect everyone in government to be mindful of what it contains”.

It contains sections on The Sovereign, elections and forming government, an overview of the executive, collective Cabinet decision making, the relationship between the executive and Parliament, the executive and the law, the civil service, the devolved administrations, the EU and other international organisations, government finance and expenditure and a final grouping of miscellaneous topics.

Many interestings things leapt out at me – a sample of which I’ve grouped below. These haven’t been double checked by anyone so please don’t take anything as legal or policy advice!

The legacy of aristocracy

The UK has a very visible history of aristocracy in its institutions. From the monarchy and the House of Lords to the established church it remains present in many of our power structures.

Most Members of the House of Lords are appointed for life by the Sovereign, on the advice of the Prime Minister. In addition, 92 hereditary peers are Members of the House (15 officeholders elected by the whole House, 75 Members elected by their party or group within the House, and the holders of the offices of Lord Great Chamberlain and Earl Marshal). The two archbishops and 24 bishops of the Church of England are also Members.

There are four Great Offices of State in the United Kingdom. They are:

  • The Prime Minister
  • The Chancellor of the Exchequer
  • The Foreign Secretary
  • The Home Secretary

This is very easy to confuse with the nine Great Officers of State which are:

One other common Cabinet position is the Chancellor of the Duchy of Lancaster which is used to assign a Minister without Portfolio.

There are many other similar positions, especially in the royal household.

The Sovereign

A new Sovereign comes into their powers immediately on the death of the previous monarch. The are required to take the Coronation Oath at the time of their investiture.

The scope of the Royal Prerogative power, which is the residual power inherent in the Sovereign, has evolved over time. Originally the Royal Prerogative would only have been exercised by the reigning Sovereign. However, ministers now exercise the bulk of the prerogative powers, either in their own right or through the advice that they provide to the Sovereign, which he or she is constitutionally bound to follow. They include, but are not limited to, powers in relation to foreign affairs, to deploy the Armed Forces and to grant mercy.

The residual personal powers of the Sovereign include, but again are not limited to, the powers to change the standing orders for civil servants, to appoint heads of Crown corporations, items related to governance of British Overseas Territories, to make senior appointments in the Church of England, to declare war or a state of emergency, to dismiss the Prime Minister or other ministers, to grant assent to legislation, to prorogue (suspend) Parliament. These are made via Royal Proclamations.

Following a coronation a Court of Claims may be convened to decide the legitimacy of claims to hereditary aristocratic positions.

A proclamation is required to summon a new Parliament for a specified date.  Proclamations are issued by Her Majesty in Council.

Among the Prime Minister’s many responsibilities include recommending a number of appointments to the Sovereign. These include high-ranking members of the Church of England, senior judges and certain civil appointments (via the Commissioner for Public Appointments). He or she also recommends appointments to several public boards and institutions, as well as to various Royal and statutory commissions.

The Sovereign remains the UK’s Fount of Honour as the individual from whom all titles of nobility and chivalry are granted.

The Sovereign may appoint Lords Commissioners who speak on their behalf in Parliament. One common use of such is the speech given just before Parliament is prorogued.

The established church

The Sovereign is the Supreme Governor of the Church of England and must, under the provisions of the Act of Settlement 1700, join in communion with it. As such, at their first Parliamentary meeting they are required to declare that they are a faithful Protestant and will secure the Protestant succession. While the Sovereign does not lead churches in Northern Ireland or Wales they must also take an oath at their first Privy Council meeting to maintain and preserve the presbyterian Church of Scotland which has spiritual independence from the Church of England.

The Church of England’s legislation forms part of the public law of England. The responsibility for initiating Church legislation rests with the Church’s General Synod. Once approved by the General Synod, a draft measure requires approval by both Houses of Parliament and Royal Assent before becoming law.

Ministers

It’s a complicated business being a government minister. The Promissory Oaths Act 1868 states that all ministers, on commencement of their office, must take the Ministerial Oath. They have to abide by the Seven Principles of Public Life, the Ministerial Code and even when they leave office their initial future employment is vetted by the Independent Advisory Committee on Business Appointments. They must abide by collective Cabinet responsibility and ensure that all evidence presented to Parliament by their department follow the Osmotherly Rules. However, it is the practice for ministers to be indemnified by the Crown for any legal actions taken against them for things done or decisions made in the course of their ministerial duties. The pay of ministers and the Prime Minister is regulated by amendments to the Ministers of the Crown Act 1937.

Senior ministers are appointed directly by the Sovereign on recommendation of the Prime Minister. The heads of major departments are given the title Secretary of State and one may become First Secretary of State. Most statutory powers and duties for ministers are conferred on the Secretary of State. These may be exercised or complied with by any one of the secretaries of state. This reflects the doctrine that there is only one office of Secretary of State, even though it is the well-established practice to appoint more than one person to carry out the functions of the office.

Secretaries of state and some other ministers (for example, the Lord Privy Seal) also receive seals of office. Their appointments take effect by the delivery of those seals by the Sovereign. Others have their appointments made or confirmed by Letters Patent (for example, the Attorney General) or Royal Warrant (for example, the Paymaster General).

Most Secretary of State positions are incorporated as corporations sole. This gives the ministerial role a separate legal personality. This is administratively convenient, for example as regards the ownership of property, because it facilitates continuity when the officeholder changes.

All ministers are made members for life of the Lords of the Privy Council upon being given their role but usually only a minority of those in senior positions in the current executive will actually attend the Sovereign.

Ministers’ powers derive from Parliament through legislation, ministers’ common law “powers to act” and prerogative powers of the Crown. However, ministers’ functions are not limited to those authorised by statute. A minister may, as an agent of the Crown, exercise any powers which the Crown may exercise, except insofar as ministers are precluded from doing so by statute and subject to Parliament authorising any required expenditure. This is known as the Ram doctrine.

The wording of legislation is drafted by the Office of the Parliamentary Council which is part of the Cabinet Office.

Under the Deregulation and Contracting Out Act 1994, a minister may authorise any person (whether or not a civil servant) to exercise some of the minister’s functions. This is known as the Carltona Principle).

Ministers, and through them their department, are required to faithfully ‘explain fully what has occurred and why’ when reporting to Parliament or any other oversight bodies even if what they say has a negative effect of the reputation of those involved. This is known at the Duty of Candor.

The independent Parliamentary and Health Service Ombudsman can be asked by citizens to investigate individual complaints against government departments.

Upholding the law

The Law Officers of the Crown are the chief legal advisers to the Crown, and advise and represent the central and devolved governments in the United Kingdom and national and sub-national in other Commonwealth realms. These are the Attorney General and Solicitor General for England and Wales, the Attorney General for Northern Ireland and the Lord Advocate for Scotland.

In exceptional circumstances it is required for the Attorney General to consult with the most senior ministers to enquire as to whether a particular prosecution is in the public interest. Examples may include very significant effects on political, military and trade ties with foreign nations. This is known as a Shawcross Exercise. All final decisions remain with the Attorney General.

The Law Officers’ consent is required for legislative provisions that have a retrospective effect or where it is proposed that legislation is commenced within two months of Royal Assent.

In extremely rare cases legal proceedings can use statements made in Parliament as evidence to clarify the specific intent of a piece of legislation.

The Secretary of State has a prerogative to intervene directly in potential public civil emergencies in order to keep the peace.

The civil service

All civil servants must adhere to the Civil Service Code. The Constitutional Reform and Governance Act 2010 placed the Civil Service on a statutory footing rather than being defined by common law and precedent. Since 1968 the Minister for the Civil Service has followed convention and has been undertaken by the Prime Minister. The Civil Service Commission provides independent assurance of fair hiring practices in the Civil Service.

The Permanent Secretary is normally the Accounting Officer for their department, with a personal responsibility to report directly to Parliament for the management and organisation of the department.  Ministerial direction to an Accounting Officer regarding departmental spending is sent to the Comptroller and Auditor General who will forward it to the Parliamentary Committee of Public Accounts and copy the Treasury Officer of Accounts.

A senior civil servant who meets with foreign government equivalents ahead of major international meetings, such as the G8, is known as a Sherpa.

Parliament

The relationship between the Sovereign and Parliamentary Sovereignty is best described as “complicated” but it is almost universally acknowledged that following the 1689 Bill of Rights Parliament is the supreme authority in the United Kingdom.

The Parliament Acts 1911 and 1949 ensure that the House of Commons, elected by the populace, has precedence over the House of Lords. In addition, the Salisbury Convention holds that the House of Lords will not oppose the second reading of a bill that was in the executive’s election manifesto.

All governments of the day rule while they maintain the “Confidence of the House of Commons” (see the Cabinet Manual for full details). Once this is lost, an election must be called. While the Sovereign may prorogue Parliament the issue of writs for the election of a new House of Commons (commands to constituencies to hold elections) are issued under the Representation of the People Act 1983 by the Clerk of the Crown in Chancery, who is also Permanent Secretary to the Ministry of Justice.

All papers presented before Parliament are known as Command Papers as they are introduced “by the Sovereign’s command”. After a piece of legislation has passed both houses, it must receive Royal Assent before it can become law.

Programme orders have made the progress of recent legislation through the Commons significantly more structured. They do not apply in the House of Lords.

The use of Statutory Instruments, also known as Henry the Eighth clauses, has increased dramatically in recent years. This allows the passing of primary legislation under the full scrutiny of Parliament with the details addressed at a later stage under the scrutiny of the relevant Select Committee. These Instruments can be published under affirmative or negative procedure – where they will become law either only if approved or only if actively prevented.

Once legislation has been completed, the Government has undertaken that ministers will (subject to some exceptions) publish a post-legislative scrutiny memorandum, within three to five years of Royal Assent. This includes a preliminary assessment of how the Act is working in practice, relative to its original objectives. The relevant select committee of the House of Commons / Lords or a joint body may use the memorandum to decide whether or not to carry out a fuller post-legislative inquiry. Many of these memos are available on GOV.UK.

The government Chief Whips in the House of Commons and the House of Lords arrange the scheduling of government business, often in consultation with their opposition counterparts. Collectively, the government and opposition whips are often referred to as ‘the usual channels’

Some of the powers of Parliament, for example those related to health and education, have, in some cases, been devolved to the regions. However, the national Parliament may still publish overriding legislation if it chooses to (but this would be highly contentious).

While Parliament remains sovereign in the UK our membership of the European Union (for example in situations involving the European Convention on Human Rights) and various international bodies such as the UN, the International Criminal Court, NATO and various inter-country treaties can significantly complicate matters.

To conclude

Following the recent change of government, sections of the Cabinet Manual will have to be re-written to remove the use of the present tense for the position of Deputy Prime Minister and to re-write some of the sections about coalition government. Apart from that it remains a highly relevant insight into the workings of government.

Even as an amateur political process junkie, I learnt a lot of new things. At 100 pages it doesn’t take that long to read – I’d encourage all civil servants to do so as part of their role in government.

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