Cabinet Manual: Revision (Constitution Committee Report)

Lord Etherton Excerpts

Friday 16th December 2022 Lords Chamber

[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.