Cabinet Manual: Revision (Constitution Committee Report)

Lord Hennessy of Nympsfield Excerpts

Friday 16th December 2022 Lords Chamber

[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.

Syria

Lord Hennessy of Nympsfield Excerpts

Monday 16th April 2018 Lords Chamber

[Baroness Evans of Bowes Park]

I reassure the noble Lord that we have called for the de-escalation and protection of these citizens and are urging our Turkish counterparts to do everything they can to minimise humanitarian suffering. We support ongoing discussions between Turkey and the US and believe that a negotiated agreement, taking into account the security concerns of both parties, is necessary to prevent further conflict. However, we remain concerned about suggestions of further operations and are calling for a period of stability to allow for the distribution of aid and humanitarian care for these citizens. We will continue to monitor the situation.

[Lord Hennessy of Nympsfield (CB)]

My Lords, I support the Government’s view that there needed to be a response to the appalling chemical attack on Douma. I am sure that considerable care was taken in assessing the Rubik’s cube of possibilities that might flow from military action undertaken with our allies. Can the noble Baroness the Leader of the House confirm that the decision-making process was what the Prime Minister, in the National Security Capability Review published on 28 March, called “Chilcot-compliant”? In other words, was the Government’s 10-point Chilcot checklist applied before the final decision was taken to launch the Tornados’ missiles?

[Baroness Evans of Bowes Park]

I can certainly assure the noble Lord that the lessons from the Chilcot report have been learned and we have paid attention to it.

European Union (Notification of Withdrawal) Bill

Lord Hennessy of Nympsfield Excerpts

Monday 20th February 2017 Lords Chamber

[Lord Hennessy of Nympsfield (CB)]

My Lords, there is a line of Nietzsche’s that General de Gaulle liked to quote, which is that the state is,

“the coldest of all cold monsters”.

How chilling too can be the state’s artefacts—even its paper ones. For a remainer such as me, these two little light green pages that capture the Bill before us represent the coldest of cold print. Yet I accept the result of the referendum, and I believe that we need now to crack on with the withdrawal negotiation and that the Government should have its statute triggering Article 50. I welcome the assurance from the Lord Privy Seal that the UK Parliament should have its vote on the departure deal, although I expect it will be an interim one in 2019, ahead of the European Parliament.

At the root of my belief that this is the way to proceed is the deal that underpins a parliamentary democracy: raised voices, yes; raised fists, no. For this deal to work, votes must prevail. The referendum was advisory, but its outcome must be respected. If it is not, and we try to caveat it or claw it back, or ask our people to kindly think again, some of them may think that the deal at the core of our open society is at the least questionable. That way lies peril, in a country already beset by a surfeit of uncertainty and no little antagonism.

Europe causes us to fall out among ourselves, as we have already seen today, like no other question. It will continue to do so, I fear, deep into the mid-to-late 2020s, when the final settlement with the European Union will at last be complete. When it is, we might be able to live, work and flourish in a refreshed geopolitical condition, free-trading enthusiastically—and I hope ever more successfully—with the rest of the world. If we can reach this happy point, our falling out over the triggering of Article 50 in the first weeks of 2017 will safely be but the stuff of PhD theses, and the occasional “Where are they now?” column about the leading personalities of the Brexit story in what few national newspapers remain.

The Bill before us drips with historical significance. It is also couched in a special, emotional geography of its own—always a factor, ever since the European question unloosed its destabilising ingredients on an unsuspecting Westminster and Whitehall, when Jean Monnet arrived from Paris out of the blue, bearing a plan for a European Coal and Steel Community in 1950. The Bill before us is a mere 67 words, but how heavy the historical freight that it bears. It is a key element in what will be the fourth of our country’s great geopolitical shifts since 1945. The first was the protracted withdrawal from Empire—from India in 1947 to Rhodesia/Zimbabwe in 1980. The second was joining the European Economic Community in 1973—or “Brentry”, as the Economist rather neatly described it the other day. The third was the ending of the Cold War between 1989 and 1991.

The parallel with disposing of the territorial Empire is, of course, inexact. It too was an intricate business involving protracted negotiations but the timetable was largely, though not wholly, in the hands of British Ministers, and they were usually dealing with but a few nascent nations at a time rather than 27 existing nations with a two-year clock ticking, which is what our negotiators will face in Brussels from the end of March.

However, there was an intriguing symbolism in the Prime Minister’s speech at Lancaster House on 17 January, for she delivered it in the very room where the independence deals with our former colonies had been shaped in the 1950s and 1960s. Her speech contained what I thought was a fascinating passage that I do not think the press picked up. Under the subheading, “A message from Britain to the rest of Europe”, the Prime Minister declared:

“Our political traditions are different. Unlike other European countries, we have no written constitution, but the principle of Parliamentary Sovereignty is the basis of our unwritten constitutional settlement … The public expect to be able to hold their governments to account very directly, and as a result supranational institutions as strong as those created by the European Union sit very uneasily in relation to our political history and way of life”.


I am still trying to make up my mind if this passage reflects a regretful Mrs May suggesting that a divorce was always likely on the grounds of deep incompatibility or if it is a reprise of that traditional British air, “Oh, why can’t Johnny Foreigner be more like us?”. I like to think it is the former.

Our debate today, as we have seen, has an elegiac quality to it. It is not our final farewell to the European Union—that will come with the repealing of the European Communities Act 1972—but it is perhaps a moment to think of those, whether they be parliamentarians, Ministers, civil servants or diplomats, who devoted much of their professional lives to getting us into the European Community in the first place and making our own often very peculiar relationships with it work thereafter, just as other friends of mine have devoted their professional lives to getting us out.

It looks now as if the UK as part of an integrating Europe will, in the long sweep of British history, seem like a 45-year aberration. Still, I salute those who devoted heart, sinew and brain to it for it was a fine, if ultimately doomed, cause. They gave it their all and, in so doing, did the state considerable service.

Outcome of the European Union Referendum

Lord Hennessy of Nympsfield Excerpts

Tuesday 5th July 2016 Lords Chamber

[Lord Hennessy of Nympsfield (CB)]

My Lords, we are living through a molten time for our people, our politics, our society and our country. We are living in the aftershock of an extraordinary event of a magnitude which, in my judgment, none of us has experienced in peacetime. In my lifetime—I was born in 1947—there has been but one geopolitical shift that comes near to it. I refer to the disposal of the British Empire—another dash for the exit. That remarkable transition, however, was very different from the caesura of Thursday, 23 June 2016, as it took place over several years, its timetable was largely, if not wholly, in the hands of UK Ministers and it left remarkably few scars on the surface of our country’s emotional geography.

The decision to leave the European Union, although its ingredients were long in the making, was, by contrast, sudden and breath-taking. It was as though all the dials needed resetting almost in one go. Whitehall departments were unprepared, as other noble Lords have mentioned. Apart from the Treasury, which had plans in place with the Bank of England to stabilise the markets, government ministries were expressly forbidden to draw up contingency plans for exit.

We may pride ourselves on being a back-of-the-envelope nation, but this was excessive. Never have I encountered so many people with so few ideas about what to do in the face of a first order crisis. The litany of post-war crises, which, as a professional historian, I write about from time to time—the sterling devaluations of 1949 and 1967, the Suez affair of 1956, the IMF crisis of 1976 and Black Wednesday in 1992—seem mere blips on the radar screen in comparison.

Never in my lifetime has our politics seemed so envenomed, poisoned still further by a palpable dearth of trust between the governed and the governors. All this at a time when our two major political parties give every appearance of eating themselves, with copious tranches of nervous energy absorbed by their internal stresses and strains.

In my judgment, the referendum result was like a lightning flash illuminating a political and social landscape long in the changing, exposing yet again fissures we knew about—disparities of wealth and life chances—but whose depth and rawness I admit I had not fully fathomed.

What can be done? Winston Churchill, that supreme wartime crisis manager, had a favourite phrase about “rising to the level of events”. That is our pressing duty—all of us in public and political life and the civil and diplomatic services too.

It is time to stand back and take a long, candid and careful look at ourselves. May I suggest that we need two separate but related inquiries? First, our place in the world. Can we, should we, still aspire to punch heavier than our weight in the world in the way that we do when on autopilot as a nation with a remarkable past and a continuing and sustained appetite for global influence? Secondly, we need to look at our internal constitutional arrangements—the relationships between the nations, regions and localities of the United Kingdom. In my darker moments, I think that 23 June lit a fuse beneath the Union. I profoundly hope not, as a man who loves Scotland deeply and cherishes the union of the United Kingdom almost beyond measure.

My preferred instruments for these inquiries would be a pair of royal commissions—an ancient institution, rusted by disuse, but it is time to unsheathe it. Failing that, perhaps a brace of Joint Committees of Parliament.

Of one thing I am certain: now is the time to think above our weight, to draw deep from our wells of tolerance and civility; perhaps even to fashion a new political vocabulary to help us think aloud together as a people and a nation about what is to become of us; to rise to the level of events; and perhaps even to surprise ourselves and the watching world by the quality, the care and the foresight of what we do.

Draft House of Lords Reform Bill

Lord Hennessy of Nympsfield Excerpts

Monday 30th April 2012 Lords Chamber

[Lord Hennessy of Nympsfield]

My Lords, I declare an interest as a member of the Joint Committee and as a signatory to the alternative report. Perhaps I may add my own words of thanks to the noble Lord, Lord Richard. His was not an easy task, as we slogged our way towards a total of 30 meetings—a record, I gather, for a Joint Committee. I am perhaps a touch unusual in getting seriously excited by constitutional matters, but as the tally of our sessions mounted, even I was reminded of that shrewd observer of our country, George Bernard Shaw, who said that the English invented test match cricket in order to give the British people a sense of eternity. The noble Lord, Lord Richard, got us through and on time, and I am grateful to him and to our clerks, though I should point out to the noble Lord that there were two Cross-Bench members of his committee, not one as he suggested.

Every generation or so, we take a crack at the question of Lords reform. We throw the particles in the air and hope that, this time, they will fall in a way that paves a path on the road to consensus. Once again, we have failed, as the voting figures in volume 1 of the Joint Committee’s report show, as does the existence of the alternative report. The noble Lord, Lord Strathclyde, spied the outline of a consensus. Over those 30 meetings of the Joint Committee, I have to tell the noble Lord, there was not a flicker of consensus. The noble Lord the Leader of the House is succumbing to an attractive outbreak of Pollyanna-ism, which is always pleasing but in this case is utterly misleading.

So, what next? In the coming Session of Parliament, we could immerse ourselves in the constitutional mire, dissipating copious quantities of parliamentary time and political nervous energy on the Government’s proposed Bill, probably boring the country and ourselves rigid except at moments of showdown and all with no guarantee that the statute will emerge at the end unless the coalition is prepared to reach for the Parliament Acts in what could well be the near twilight of its term. Is it wise to attempt to settle the future of the second Chamber before we know the outcome of another grade 1 listed constitutional question, Scottish independence, which is to be the subject of a referendum in autumn 2014?

There is an organic, incremental alternative to the invasive surgery proposed by the coalition for your Lordships’ House. The noble Baroness, Lady Hayman, described it with great eloquence in her oral evidence to the Joint Committee, as did Peter Riddell, director of the Institute for Government, in his. Put their thoughts together with the content of the Bill in the name of the noble Lord, Lord Steel of Aikwood, and the proposals under consideration by the usual channels from the Leader’s Group on Working Practices chaired by the noble Lord, Lord Goodlad, and you have in the making a substantial and hugely worthwhile reform which would have the additional benefit of being fuelled by a high level of genuine consensus.

The Joint Committee’s report acknowledges this in paragraph 11, which reads:

“Other approaches to reform are of course possible. A number of our witnesses advocated an incremental approach, focusing on issues on which there exists a large degree of consensus: the mode of appointment, the size of the House, retirement, disqualification and expulsion”.

The paragraph continues:

“Lord Steel of Aikwood's private member's Bill attempted to address some of these issues. The Joint Committee was established to consider the draft Bill, however, and we have kept within our remit”.

The alternative report, on pages 78 and 79, goes further and actively urges the Government to,

“consider including further proposals for immediate reform, including those put forward by Baroness Hayman, the former Lord Speaker, and those contained in the Leader’s Group report of working practices in the House of Lords, chaired by Lord Goodlad”.

Among the candidates for what the alternative report calls “immediate reform” are: reducing the size of the House to about 500, future appointments to carry a fixed term, the Appointments Commission to be made statutory, an end to the link between peerages and the honours system, a retirement scheme for Members, the matter of expulsion and exclusion and the ending of by-elections following the deaths of hereditary Peers. I know that the last will not find consensual support from several noble Lords whom I respect and admire.

[Lord Ashdown of Norton-sub-Hamdon]

I am listening very carefully to the noble Lord’s interesting proposals. Do any of them relate to the issue of democracy and election?

[Lord Hennessy of Nympsfield]

In the purest sense, no, but the virtue of our system, as I have always seen it, is that the undisputed primacy of the House of Commons, if I can put it bluntly, takes care of democracy. I know that the noble Lord and I will not agree on this although we agree on so many other things.

The danger is that while anticipating the so-called big-bang answer to the question of the Lords, nothing will happen, needed reforms will be stymied and the planning blight that has afflicted your Lordships' House since the departure of the bulk of the hereditary Peers in 1999 will continue. The ingredients of a substantial reform are lying at our feet. Let us pick them up, fashion them into something coherent, something valuable, and let us implement that bundle of reforms before the next general election.