Tuesday, 25 October 2011

What is the Cabinet?

The Cabinet Manual has now been published.  In retrospect, this may prove to be a major milestone on the road to the enactment of a written constitution for the UK (despite the protests of Sir Gus O'Donnell and others).

In this post, I want to focus on one claim made by the manual which (as was pointed out when the draft version of the manual was being scrutinised) appears to be historically inaccurate:
Committees of the Privy Council
1.14   Cabinet is the executive committee of the Privy Council. There are a number of standing committees of the Privy Council (for example the Judicial Committee, which among other things is the court of final appeal for the UK Overseas Territories and Crown Dependencies, and for some Commonwealth countries).
The problem is that the Cabinet does not appear to have anything to do with the Privy Council, beyond having an overlapping membership.

The Cabinet, like the Prime Minister, is one of those institutions that existed de facto long before it was given any official recognition.  Its origins lie in the 17th century, and its current place in the constitution can roughly be dated from the reign of George I (1714-1727).  Perhaps surprisingly, the first statute to mention the Cabinet was the Ministers of the Crown Act 1937.

William Gladstone wrote in The North American Review in September 1878:
The Cabinet wields, with partial exceptions, the powers of the Privy Council, besides having a standing ground in relation to the personal will of the Sovereign, far beyond what the Privy Council ever held or claimed. Yet it has no connection with the Privy Council, except that every one, on first becoming a member of the Cabinet, is, if not belonging to it already, sworn a member of that body. There are other sections of the Privy Council, forming regular Committees for Education and for Trade. But the Cabinet has not even this degree of formal sanction, to sustain its existence. It lives and acts simply by understanding, without a single line of written law or constitution to determine its relations to the Monarch, or to the Parliament, or to the nation; or the relations of its members to one another, or to their head.
We find a similar denial of any institutional link between the Cabinet and the Privy Council in Anson's Law and Custom of the Constitution (1892):
The Cabinet are 'Her Majesty's servants.' The Privy Council are 'the Lords and others of Her Majesty's most Honourable Privy Council.' To describe the Cabinet as a Committee of the Privy Council is somewhat misleading.... But inasmuch as the Cabinet meets for the purpose of advising the Crown, and is a body not formally constituted as such, nor as such bound by any oath or declaration to diligence and secrecy, it would seem that to be sworn of the Privy Council is a necessary prelude to admission to the Cabinet. The Cabinet meets to consider and advise how the Queen's Government may best be carried on in all its important departments. Whereas the Privy Council meets to carry into effect advice given to the Queen by the Cabinet or by a Minister, or to discharge duties cast upon it by custom or statute.... It is necessary that a member of the Cabinet should be under the obligations of a Privy Councillor, because he is a confidential adviser of the Crown.
But the Privy Council is essentially an executive, the Cabinet a deliberative body....
....The Cabinet is summoned by the Prime Minister, through his private secretary, two personages who have no place in the legal theory of the Constitution. The Privy Council is summoned by the Clerk of the Council, an officer whose history dates back to 1540....
The Cabinet of the present day is then a body distinct from the Privy Council in title, in function, in mode of summons.
Halsbury's Laws says: "Cabinet ministers are invariably members of the Privy Council and must, it seems, be bound by a privy counsellor's oath before they can enter the Cabinet."  There is a footnote stating that exception was taken in Parliament in 1905 when the press included Lord Cawdor in a list of cabinet ministers attending a council before he had been sworn in as a Privy Counsellor.  The explanation given was that his attendance had been necessary because he was the First Lord of the Admiralty.

It therefore seems that the Cabinet Manual has got it wrong.  Can we perhaps expect a correction to be made in the next edition?