No, Prime Minister: a new road map for government

Whilst this week’s announcement that Gus O’Donnell, the UK’s most senior mandarin, we have a draft Cabinet manual in circulation doesn’t bring us any closer to codification of the constitution, it does offer lots of interesting source material on what government is and does.

To reiterate, this document isn’t intended to investigate further the pros and cons of leaving behind only Israel and New Zealand as non codifiers. What I think is worth pointing out, however, is that students should be aware of its existence (even if they feel they do not want to respond to the Cabinet Office’s request for comments by March 2011), and that it does codify many of the murky and shadowy areas of conventions into one place for the first time. As such it changes the texture of debate for AS government questions on sources of the constitution given that it can be legitimately claimed that this is such a source.

Below are the notes I have traditionally relied on for sources of the constitution. It now looks like I will need to amend them slightly:

“Statute. Acts of Parliament such as the House of Lords Act 1999 (cutting the number of hereditaries to a rump of 92), or the Terrorism Act 2005 (28 day detention), account for a great deal of the rules of governance in the UK.

Common law. Sometimes referred to as ‘case law’ or ‘judge made law’ since the decisions of judges in court form the basis of law, and precedent determines how the law is applied in subsequent cases. Much of criminal law in England and Wales is derived from common law - for instance there is no statute making murder illegal.

Convention. That the most senior members of government departments shall form a Cabinet, or that the Prime Minister should be the leader of a party that commands a majority in the Commons is not to be found in any statute law. We can add to this the Salisbury Convention that guides the Lords not to reject any bill which was a manifesto commitment of the government.

Royal prerogative. It is now customary that the Prime Minister exercises powers which are theoretically the preserve of the monarch, e.g. hiring and firing ministers, calling elections, etc.

European law. Accession to the EEC (now EU) has had a considerable impact on the shape of the UK constitution. The European Court of Justice reigns supreme where EU law applies, e.g. in July 2008 Luxembourg ruled in the Coleman case that it is illegal to discriminate against an employee because of their association with a disable person.

Works of authority. A canonical sextet of Walter Bagehot, A.V. Dicey, Sidney Lowe, L.S. Amery, Harold Laski, and Ivor Jennings have each created a thesis or doctrine on the constitution, e.g. Dicey established the twin pillars of the constitution: rule of law and parliamentary sovereignty. Bagehot outlined the principle of Cabinet government, and this is the theoretical model applied today.”

The cabinet manual also makes rich pickings for teachers wanting to make mock source questions for edexcel unit 2. More on that soon.

The cabinet manual is here.

Article on the hung parliament aspect.

Editorial on the significance of the new document.