Examination of Witnesses (Questions 1-58)
LORD BUTLER
OF BROCKWELL
AND LORD
TURNBULL
24 FEBRUARY 2010
Q1 Chairman: Lord Butler, Lord Turnbull,
welcome. We are very glad to have your help and advice and I am
sure the whole country is going to be glad to have your help and
advice. Lord Butler, you and I have been here before in February
1974, I remember. Are the procedures for the formation of a government
following a general election in which there is no overall majority
clear at least in the minds of those most closely involved? What
is your experience?
Lord Butler of Brockwell: I think
that they are clear and that they are simple. The convention is
that the Prime Minister before the election remains Prime Minister
until it is clear that he can no longer command the majority in
Parliament, and that somebody else can. I think it may be the
popular myth that the Prime Minister loses office if his party
is defeated in a general election, but that is not the position.
The Prime Minister remains Prime Minister until he cannot command
a majority in Parliament and somebody else can.
Q2 Chairman: Is there an assumption
that the process must be completed very quickly? For example,
how soon does Parliament have to meet? What other time constraints
are there?
Lord Turnbull: Chairman, at the
time that the old Parliament is dissolved, a timetable is usually
set for the start of the new one, and implicitly it assumes that
the process of forming a new government is not going to take too
long. It certainly does not allow for the length of time which
one sees in many other jurisdictions. There is an assumption that
a hung Parliament is either not very likely or can be quickly
resolved, and it is possible that you could find that there is
some conflict between those two.
Q3 Chairman: Lord Butler, when you
were in Number 10 in 1974 it did take until Monday before the
issue was resolved. Were you conscious of a tremendous time constraint
and that things had to be rushed and decisions made very quickly?
Lord Butler of Brockwell: No,
not at all because I think from Thursday to Monday is not a very
long time by comparison with other jurisdictions. No, I think
that what I and others of us in Number 10 were conscious of was
tremendous public and media pressure, but not pressure of a timetable.
As I understand the situation, the writ for a dissolution sets
a date for Parliament to meet again and that cannot be changed,
but the Queen's Speech can be delayed so that if it took longer
for an administration to be formed, then that is how it would
be done.
Q4 Chairman: Is it not possible by
a further proclamation to delay the opening of Parliament?
Lord Butler of Brockwell: It may
be so. I do not know the answer to that.
Q5 Mr Hogg: Can I ask a question
that is probably relevant to both Lord Butler and Lord Turnbull?
I recognise of course that in 1974 it was possible to be a little
more leisurely in the negotiations, albeit there was a great deal
of public pressure. Now with the present economic condition which
we face and a fear that the markets may be expecting early signs
of spending plans or spending reductions, would you agree that
the timeframe may be compressed by those market considerations?
Lord Turnbull: The answer is "yes"
and that will condition the behaviour of the players. They will
know that they cannot spend a long time haggling away, making
no concessions. There is a game of blame here; that no-one will
want to be blamed for being the people who perpetuated this position
of uncertainty or who prevented an agreement. That will concentrate
minds. There will be pressure, but it will, I believe, have a
beneficial effect on the behaviour of the people involved.
Q6 Mr Hogg: Concentrating minds most
wonderfully.
Lord Turnbull: It will, yes.
Q7 Chairman: You have made the point
that in many other countries, particularly many other European
countries, the process is quite slow, and some countries, like
the United States, have a long hand-over period, or a long old
administration period, but face the same markets. Why are we different
in this respect or are we?
Lord Turnbull: One of the features
is that we choose our ministers from the executive.
Q8 Chairman: From the legislature.
Lord Turnbull: Sorry, from the
legislature. You could have a position in which you have a chancellor
of the exchequer who either did not stand again or was defeated,
still remaining as chancellor of the exchequer, and this is a
slightly odd situation which I think in many other countries would
not necessarily apply; that people would continue in their present
posts in a more natural way. In the US of course it has provided
a period of almost two months in which the previous administration
stays in power until the new administration is ready take over.
Chairman: We are going to return to some
of the caretaker government issues a little later.
Q9 Mr Heath: Of course, some countries
manage without a government for rather long periods without any
huge deleterious effect, apparently. I wonder, is there any formal
arrangements for the Civil Service to co-ordinate with the authorities
of Parliament under these circumstances? Is the contingency planning
simply in the hands of the permanent Civil Service, or does it
extend to the authorities in this House as well, because obviously
there are implications for the way Parliament does its business
early in a new potential administration?
Lord Butler of Brockwell: I think
there would certainly be contacts between the Civil Service and
the House authorities, and particularly so in circumstances when
it looked as if the arrangements for the resumption of Parliament
would have to be delayed, but I would expect that just to be,
as it were, a normal bit of business between the Civil Service
and the House authorities. Could I just say in relation to the
previous exchanges: I have said in other contexts that I think
the arrangements in Britain for the formation of a new government
after an election are unwisely frantic because—I have seen
this, and Lord Turnbull has seen it—if it is a new Prime
Minister, when the new Prime Minister comes in, he or she comes
in in circumstances where they have had a long campaign; they
may have had to sit up most of the night waiting for their election
results, they then may have to travel to London, and they arrive
in a state of exhaustion. To then have to make decisions that
are crucial for the country, including the appointments of your
main lieutenants in the first few hours, and a lot of other important
decisions, has never seemed to me to be particularly wise, nor
does it seem to me to be necessary. It is part of a drama that
we have got used to that everybody enjoys, and it is difficult
to break.
Q10 Mr Hogg: In the present circumstances
it is inevitable, is it not, given the financial position?
Lord Butler of Brockwell: I do
not know. I would not agree with that actually. I do not think
it is inevitable; but there are certain situations when outside
pressures would be greater to get a new administration into place.
Q11 Mrs James: How important is it
in any agreement between political parties to share power whether
it be by coalition or by compact to be made public?
Lord Butler of Brockwell: I think
it is inevitable that such arrangements would be made public.
I suppose there could be confidential understandings which the
parties keep to themselves, but I doubt whether they would remain
confidential for very long!
Q12 Mrs James: Do you think it should
be made public prior to an election? If they have been having
these negotiations should they be published before an election
so that people can make a decision on that agreement?
Lord Turnbull: I would say no
because all those discussions will be hypothetical and there will
be many permutations and combinations within them. It is inevitable
that they write up what the nature of the agreement is, whether
it is a coalition or support for a minority government. There
are precedents which we have seen written up in the Constitution
Unit's report. People are now seeing different ways of formalising
these agreements. We have the examples of Scotland and Wales.
I just do not think it is viable to have an agreement that does
not have some solid written element to it.
Q13 Dr Whitehead: There is the circumstance
under which the incumbent Prime Minister stays on, as it were,
as chief adviser to the Sovereign, over and above his political
imperative to form a government; but at what point does the leader
of the next largest party get invited to be involved in the process
or get invited to the Palace?
Lord Turnbull: Only when the Prime
Minister has concluded that he cannot form a government himself.
I think we can take this one stage further: I do not think that
in his role as adviser to the Sovereign he can simply go to the
Palace and say: "I cannot make it work; you will have to
try someone else." I think it is incumbent upon the Prime
Minister to present to the Sovereign an alternative arrangement
which he believes is going to work and that has been agreed. In
other words, it would be a dereliction of duty for the outgoing
Prime Minister to leave a limbo in which the Queen has got to
try and make a decision. The last thing you want is the Queen
to be presented with trying something out which may not command
political support. It has happened in her dominions and it has
been controversial, but it would be most regrettable if it happened
here.
Q14 Dr Whitehead: Does that mean
that the leader of the next largest party following the result
of the election, as it were, simply has to wait in the wings,
or does the leader of the next largest party have any role in
that particular process in your view?
Lord Turnbull: He may be arguing
that he can form an administration, but I think it is clear that
the incumbent Prime Minister in a sense has first refusal in this
process. He can see whether he can find an arrangement that would
produce support for himself and his party. This is what happened
in 1974: even though Edward Heath was not the leader of the largest
party, he was the incumbent. Until that process had run its course,
only then was the opportunity offered to the leader of the next
party.
Lord Butler of Brockwell: If I
can just endorse that, the leader of the second largest party
might be having discussions with other political parties, but
it is important that the Queen is not involved until the Queen
can be sure that the person she invites to form a government has
got the best possible chance of doing that. That is something
which the outgoing Prime Minister has got a duty to advise her
on.
Lord Turnbull: There may be circumstances,
for example, where the Prime Minister decides if he or she will
submit a Queen's Speech, but without any certainty that it is
going to be carried, and yet may wish to proceed with that. Does
the Sovereign have a particular role at that point in perhaps
saying, "That does not look like it is going to work; could
we please call somebody else."
Lord Butler of Brockwell: The
answer to that question is "no"[1].
If the incumbent Prime Minister decides to present a Queen's Speech,
then he has a right to do that, and wait for the outcome of Parliament.
I think the fact is that for nearly 200 years a Prime Minister,
as a result of an election, has not faced Parliament and been
voted down on a vote of confidence; but one can imagine circumstances
in which the Prime Minister might want to try that out.
Q15 Dr Whitehead: There may be alternative
circumstances where the incumbent Prime Minister may go to the
Palace and say: "This is an awful mess, is it not; there
is no overall result; why do we not have another general election?"
At what point does the Sovereign have a hand in that sort of situation?
Lord Turnbull: That was dealt
with in 1950 with the so-called "Senex letter" of Sir
Alan Lascelles—he wrote under the pseudonym—which
sets out some conditions under which a second dissolution could
be denied. In other words, if the Sovereign thought there was
a possibility that someone else could produce a workable majority,
then they should be given that chance, rather than someone saying:
"Can I have another election in a few weeks' time?"
I think there are strong pressures against someone asking for
a second election, saying, "I did not quite win last time
but let me have one more go." Those principles have been
around for 60 years.
Q16 Chairman: Is the letter to The
Times in 1950 under a pseudonym Senex, which we now know is
Alan Lascelles, a constitutional document that now guides us?
Lord Turnbull: In a strange way,
it is, yes; people have accepted the logic of the arguments that
he put forward.
Lord Butler of Brockwell: I think
that things have moved on in this respect, as Lord Turnbull said.
There is a factor which protects the Queen from having to get
into that position of refusing the incumbent Prime Minister a
further election; and that is there is evidence that the British
people so dislike being taken to the polls that if they were forced
to have another general election they would heavily punish the
person they saw as responsible for it. I think it very unlikely
in those circumstances that the Prime Minister would say, "May
we have another general election, Ma'am?" and hope to do
well in it. I do not think it is likely that in practice the Queen
would these days be put in a position of having to refuse a general
election.
Q17 Dr Whitehead: There may be other
circumstances, to put a final scenario, that the incumbent Prime
Minister does not look like he or she is going to be able to form
a government, but it is not necessarily the case perhaps in the
Sovereign's and others' opinions that the party of that incumbent
Prime Minister might be able to form an administration. At that
point the Sovereign might conceivably say, "Yes, perhaps
someone could have a go from your party at forming an administration
but it is not you, Prime Minister."
Lord Butler of Brockwell: Again,
I do not think that the Sovereign ought to be put in that position,
or would be put in that position. It would be the duty of the
politicians to work it out, and of the incumbent Prime Minister
to go to the Sovereign and say: "I do not think I can form
a viable government in partnership with other parties, but it
has been made clear to me that if there was another leader of
my party it would be possible." I think in those circumstances
the right course would be for the Prime Minister to stay on while
the procedures for producing another leader went through, and
until he could go to the Queen and say: "There is another
leader. The other parties have indicated that they will support
the party in those circumstances, and I advise you to send for
that person." That might take three weeks or so. That is
when you would get into the position of possibly quite a long
delay.
Lord Turnbull: This would be hugely
controversial. Supposing Labour had two more seats than the Conservatives,
and the Liberals said: "We will form a government with you
but not with your leader; you find another leader." What
the Conservatives would be saying is, "Are you serious that
this country should be led by someone who did not stand in the
election as a potential Prime Minister, who was not tested in
any of the debates, as opposed to someone who has gone through
that process and is only two seats short and possibly has a lot
more votes?" That particular example you have given of whether
a leadership switch can be made is, I think, a very difficult
one.
Q18 Chairman: Where would the Palace
get its advice in this situation, from you or from whom?
Lord Turnbull: Our successor,
I think is the answer. The Palace can get advice from wherever
it likes, but it should definitely include advice from the Cabinet
Secretary.
Lord Butler of Brockwell: I think
it is known that the Palace does have other constitutional advice.
As Lord Turnbull says, it can take advice from anybody.
Q19 Dr Palmer: We have an element
of deliberate ambiguity in the British constitution, starting
with the fact that we do not have a constitution; but I thought
that what Lord Turnbull said was interesting, that the Prime Minister
has a responsibility for advising the Sovereign on what steps
to take even if those steps are to replace him. There will be
situations where there is a legitimate difference of opinion on
who might have a stable majority. I am thinking of the marginal
cases where a couple of dissident MPs in a potential majority
could be expected perhaps to vote against, but their intentions
are not entirely clear—you are aware of the type of situation.
In that situation, are you really saying that the outgoing Prime
Minister has a responsibility to say, "Oh, I think that Fred
is the one who is likely to come out best with this"? Would
it not be more a question of Parliament testing it in a series
of votes?
Lord Turnbull: I think you are
right. The way I look upon the election is that it creates an
electoral college. As Lord Butler has said, it does not determine
an outcome directly. Unlike the US, the electoral college is the
legislature, and ultimately these propositions have got to be
tested there. You can see where support really lies, who is bluffing
and who is not. Ultimately Parliament may have to perform that
role.
Lord Butler of Brockwell: I think
that it would not simply be a matter of the incumbent Prime Minister
expressing an opinion; I think the incumbent Prime Minister would
be expected to have some evidence, i.e., in statements by the
other parties that they would support an alternative head of government.
Q20 Chairman: Is this not history
now that parties elect their leaders by various different processes,
all of which take quite some time?
Lord Butler of Brockwell: I think
it is history—exactly—that the incumbent Prime Minister
will simply express an opinion as between two people.
Q21 Chairman: I meant history in
the sense of being no longer applicable.
Lord Butler of Brockwell: Exactly.
The Sovereign should not be expected to act on that and there
would be procedures to resolve the issue, as you say, by parties
undertaking their own election.
Q22 Dr Palmer: To complete my point,
I do not think the Sovereign can reasonably be expected to form
a view on the opinion of each individual backbencher on whether
they are going to follow their party's preference for one leader
or another. Someone is going to have to take the initiative to
decide the order in which potential governments are tested in
the House of Commons. Am I right in saying that your understanding
is that the initiative basically rests with the current Prime
Minister, and after that the Sovereign can look at alternatives?
Lord Butler of Brockwell: Yes,
but on the basis of as good evidence as the incumbent Prime Minister
can produce. You are right in that it might fail. Let us say there
was a backbench revolt and the person whom the incumbent Prime
Minister had advised the Sovereign to summon brought a Queen's
Speech, and that Queen's Speech was defeated, and then the process
would have to go on again. The essential thing would be that it
would be for the politicians and the House of Commons to work
it out, and the Sovereign should stay above that frame.
Q23 Mr Heath: Can I just put it to
Lord Turnbull that he came up with two mutually contradictory
statements in consecutive answers? He correctly stated the view
that Parliament is effectively the electoral college for determining
the administration; but in a previous answer he postulated a quasi
presidential view, that nobody who had not been presented to the
country as the potential Prime Minister could possibly be considered
by that college on the grounds that they were untried and untested
in television debate. I am not sure I accept both of those views
simultaneously.
Lord Turnbull: I was not saying
that the second of those was the true constitutional position;
I was saying that is what I would expect, in current circumstances,
the Conservatives to be arguing.
Q24 Alun Michael: Can we focus on
the role of the Cabinet Secretary, a shadowy role that is illuminated
mainly by Yes, Minister and Yes, Prime Minister
perhaps! What role does the Cabinet Secretary play in the process
of the formation of a potential government by an incumbent Prime
Minister, and would that role be different if the process is being
undertaken with the leader of what until then has been an opposition
party?
Lord Butler of Brockwell: We are
talking about the circumstances of a hung Parliament, I take it?
Q25 Alun Michael: I am asking in
general. Obviously it comes more into focus with a hung Parliament.
Lord Butler of Brockwell: The
Cabinet Secretary will be the adviser to the Prime Minister, but
of course there is a convention that is in operation, for some
15 months before the election; there can be contacts between the
opposition parties and the senior Civil Service and obviously
between the leader of the opposition and the Cabinet Secretary.
Indeed, even outside those conventions, with the Prime Minister's
permission there may be such contacts at other times and frequently
are. The Cabinet Secretary would be taking an apolitical role
and would be a neutral person who would be available for advice
to any party.
Q26 Alun Michael: Is Lord Turnbull
willing to give a less planned response?
Lord Turnbull: No! The Cabinet
Secretary has available advice of his own. The one person I turned
to a lot was the First Parliamentary Counsel who was the repository
of a great deal of wisdom and knowledge on the law and the conventions.
It is to them where the Prime Minister will turn to for advice
in the first instance.
Q27 Alun Michael: In the event that
there is a hung Parliament—and that obviously involves discussions
about a government formation rather than a decision by a single
leader—does the Cabinet Secretary or the Cabinet Office
in any way have a role in the process; and, whether it does or
not, should it?
Lord Turnbull: It can do. To some
extent this has been pioneered in Scotland where what I would
call the old Permanent Secretary of the Scottish Office, head
of the executive, has now developed processes for handling the
formation of a new government, and it is the same thing in Wales.
One of the possibilities canvassed is that in effect the Cabinet
Office and its equivalent in the devolved administrations would
appoint liaison officers. There would be someone designated to
work with each of the other parties and be their point of contact
and source of advice. The Cabinet Secretary would undoubtedly
stay working with the Prime Minister of the day.
Q28 Alun Michael: In a sense, that
is inevitable with the almost inevitability of a coalition government
in Wales and Scotland, so those mechanisms are necessary. In the
case of the UK government is that role clear? Have there been
developments, for instance since 1974 in the development of conventions?
Lord Turnbull: No, the answer
is that there have not been, but the work of the Constitution
Unit is saying that there should be. One of the key reasons for
that is that the width of the no man's land of people other than
the two main parties is far larger than it was. Even as late as
1992, there were still only 20 Liberals. Therefore, the probability
of being caught in this no man's land must be greater than it
was, and therefore we ought to begin thinking about better mechanisms
for handling something which has not happened but which probably
has a higher probability of happening now than it did 40 years
ago.
Lord Butler of Brockwell: I think
that the position of the Civil Service is that it could service
discussions between the political parties at the request of those
parties and with the permission of the Prime Minister. I think
both those conditions would have to be fulfilled. I think it is
likely they would be fulfilled, but I think they would have to
be. The other thing with the Civil Service is that it could service
the discussions. It could not advise on the political tactics.
It would be a matter of setting agendas, arranging meetings and
keeping minutes.
Q29 Alun Michael: I think that is
an important answer in the sense that, obviously, these are essentially
political and relational discussions, are they not?
Lord Butler of Brockwell: Yes.
Q30 Alun Michael: And therefore there
is a danger, if the Cabinet Secretary becomes embroiled in the
content as distinct from the process.
Lord Butler of Brockwell: That
is absolutely correct. That is the right distinction, I think.
Q31 Alun Michael: The suggestion
that the Cabinet Office is producing a Cabinet manual with a section
on the process of transition, as I suppose one ought to describe
it, how important is a public statement of a shared understanding
of provision and principle in these circumstances?
Lord Butler of Brockwell: I think
it would be valuable because it is important that if this situation
arises there would be a good deal of public understanding about
the circumstances; and, for example, understanding about the point
that we made at the beginning that the Prime Minister does not
automatically lose office because he loses the election. The general
public out there probably believe that it is the case that he
would, and so there would be a tremendous fuss. I think that public
education on this valuable.
Lord Turnbull: I think it is useful,
for the reason Douglas Hogg mentioned, to have settled a lot of
these principles in advance and mentally rehearsed a variety of
different outcomes, because it may be highly desirable to produce
an outcome faster rather than more slowly.
Q32 Alun Michael: Does not sod's
law in politics indicate that whichever scenarios you envisage,
it will be a different one that turns up?
Lord Turnbull: It may well be
the case.
Q33 Alun Michael: So could not rules
be a constraint as well as a help?
Lord Turnbull: No, I think it
is useful for all the players to understand a common set of principles,
so that they are not spending time arguing about things that ought
to be part of the general consensus.
Lord Butler of Brockwell: I think
that Lord Turnbull's use of the word "principles" is
better than "rules".
Q34 Mr Tyrie: I would like to ask
you about caretaker arrangements, but before I do, I would like
to go back to one remark just for clarification that you made
a moment ago, Lord Butler. You said that the Cabinet Secretary,
in the event of a hung Parliament is available to advise the leader
of the opposition. Does he consider that his role as adviser on
these issues is equal, or does he have a primary responsibility
to advise the incumbent Prime Minister; and when was such advice
last sought and taken?
Lord Butler of Brockwell: I think
you are right to qualify what I said. I think his principal duty
remains to the Prime Minister, but I would expect that, just as
before the election, the leader of the opposition would have access
to the Cabinet Secretary. I would expect that the Prime Minister
would agree to that continuing after the election as well. The
range of advice would be the same: it would be factual rather
than policy.
Q35 Mr Tyrie: And it will be factual
rather than policy with the Prime Minister as well?
Lord Butler of Brockwell: Correct.
Q36 Mr Tyrie: On the caretaker arrangements,
it is now intended that we should spell out in a Cabinet manual
what these arrangements are; so even to the relatively informed
insider the element of ambiguity, such as it is, will certainly
be removed. What sanction is available to a Cabinet Secretary
if a Prime Minister decides not to take the advice of the Cabinet
Secretary and demands that a decision be taken which, in the opinion
of the Cabinet Secretary, is something that goes beyond the minimum
required for the conduct of good government during a caretaker
period?
Lord Turnbull: I think this is
probably rather like an Accounting Officer's direction. It does
not have a statutory backing in the way that that does. It is
now the accepted practice that those directions which are regular
but not frequent are reported to Parliament. It should be known
that if the Cabinet Secretary believed that, for example, making
a particular appointment was not strictly necessary but was being
proceeded with, the minister concerned would be able to say, "I
have received your advice; nevertheless, for the following reasons
I think it is necessary to proceed with this and I so direct you
to proceed."
Q37 Mr Tyrie: If the Cabinet Secretary
strongly disagrees he has got to go public, has he not?
Lord Turnbull: I would say "yes".
Q38 Mr Tyrie: How would he go about
that: issuing a press release, holding a press conference? What
exactly is the mechanism now that we are formalising all of this?
Lord Turnbull: This mechanism
is yet to be developed.
Q39 Mr Tyrie: What should be the
mechanism, that is the question I am asking?
Lord Turnbull: I think by some
means the Cabinet Secretary would say, "When you announce
this, Prime Minister, it should be clear that you have proceeded
on your authority, and used your judgment" if the Cabinet
Secretary did not think this was essential. He is not saying it
is wrong; it simply means that it is then clear whose judgment
it is that is relied upon.
Q40 Mr Tyrie: You will have to provide
your reasons, will you not? It is not enough to say, "I disagree"
and then fall silent again.
Lord Turnbull: Possibly, yes.
Q41 Mr Tyrie: I am trying to eliminate
this ambiguity with this word "possibly" creeping in.
Now we have a Cabinet manual it seems to me that this level of
ambiguity is going to be quite problematic.
Lord Turnbull: I think the idea
that only essential business is conducted during an election is
not one of the things that will be new in this manual. This exists
already. I am pretty sure it is in the existing Ministerial Code.
It is a question that could have been asked at any time in the
last 20 years actually.
Q42 Mr Tyrie: I am asking it now
because we are publishing a Cabinet manual, and you correctly
referred a moment ago to the fact that you can go to the First
Parliamentary Counsel for advice. Would not a logical course be
for you to obtain advice and publish it?
Lord Turnbull: I do not think
I favour publishing the advice the Cabinet Secretary receives
because ultimately you get advice from various points, but if
it came to it he would have to say why he thought, as in a Cabinet
Office issue, this was not a proper public action, and the minister
concerned would have to say why he thought it was.
Lord Butler of Brockwell: I would
suggest that the simplest mechanism is like the direction given
to an accounting officer. The Cabinet Secretary should ask the
Prime Minister to give a direction, or the Permanent Secretary
should ask the Secretary of State to give a direction, and that
direction should be reported to Parliament. That is what happens
in the case of an accounting officer, and that is what I would
expect would happen in this case.
Q43 Mr Tyrie: One last question:
with all this written down in this manual, were such a decision
to be taken which might have adverse effects on some party in
the country or some group, which may be very upset about it, who
know the decision was taken in this way against the advice of
the Cabinet Secretary, are any of these issues in this Cabinet
manual now going to be subject to judicial review?
Lord Turnbull: I do not know the
answer to that. I would very much hope not.
Q44 Chairman: Triumph of hope over
experience!
Lord Turnbull: None of this would
be relevant to an election. A judicial review would be rather
pointless because it would all come about afterwards.
Q45 Mr Tyrie: The decision may affect
a group or an individual in a big way and he or she may be very
upset about it.
Lord Butler of Brockwell: I think
there are two lines of defence for an aggrieved citizen in those
circumstances. The first line of defence should be Parliament;
that this is reported to Parliament, and Parliament takes action
on it. If that does not work, then I think it is perfectly open
to a citizen to apply for judicial review on the grounds that
the decision was not a decision that a reasonable person should
have taken.
Q46 Mr Tyrie: The assessment of reasonableness
would be based on the advice given by the Cabinet Secretary to
the Prime Minister that was overridden on a direction.
Lord Butler of Brockwell: Possibly.
I have used a word that you did not want used! I think this is
a legal matter really and it would be for lawyers to say whether
a judicial review would be likely in the circumstances.
Q47 Mr Tyrie: There are many advantages
in writing these things down, Lord Butler, but one of the disadvantages
is that the lawyers tend to get more involved.
Lord Turnbull: One of the advantages
is that it raises the cost to all those involved of proceeding
on a disagreed basis, and therefore it is less likely that these
things happen.
Mr Tyrie: I understand.
Q48 Mr Turner I am really going back
to the beginning. We are saying that on some occasion which may
happen in the future we are talking about not four days but four
weeks with a question mark over who is the Prime Minister, is
that correct?
Lord Butler of Brockwell: Yes.
Q49 Chairman: Is that the same point?
Lord Turnbull: Subject to the
caveat that circumstances may be such that the participants realise
that they cannot spend four weeks on this issue.
Q50 Mr Turner They cannot spend four
weeks, so they are forced into the corner.
Lord Turnbull: They are forced
to take a decision more quickly than that because they realise
that damage would be done by the sight of politicians wrangling,
making no attempt to reach reasonable compromises; so there are
pressures on them. I know it is the case in some other countries
that you can take weeks, but if you are facing the position where
there are important decisions to be taken, there will be strong
pressures on everyone not to take four weeks. It may take more
than four days but I very much doubt it is going to take four
weeks.
Chairman: I am very conscious of the
time. We can pick up in the next session things we have not managed
to get through in this one.
Q51 Rosie Cooper: Does the Civil
Service function, indeed, is it required to function differently
in a coalition government, and how would civil servants handle
their obligations to ministers of different parties?
Lord Butler of Brockwell: This
is of course not tested in recent times, but the Civil Service
serves the Crown, which is represented by the government of the
day. A permanent secretary would be responsible to his or her
minister, whichever party that minister came from; and through
that minister to the Cabinet; so that is the way I would expect
the system to work.
Q52 Rosie Cooper: You do not see
any difficulties in there?
Lord Butler of Brockwell: Of course
there might be practical difficulties, but in other countries
they get round them, and in Scotland they get round them.
Lord Turnbull: The Civil Service
is constantly reminded by its colleagues in local government that
they do this every day of the week.
Q53 Rosie Cooper: Looking at extrapolating
that a bit to the difference between the Cabinet Office and Number
10, how would those respective roles be different in a coalition
government, especially because Number 10 essentially serves the
Prime Minister?
Lord Butler of Brockwell: Correct.
Just as in a department the staff of Number 10 support the Prime
Minister now, the staff of the Cabinet Office support the Cabinet
as a whole, as does the Cabinet Secretary; but clearly the Cabinet
Secretary has a particular relationship with the Prime Minister
as the chairman of the Cabinet.
Mr Hogg: I wanted to go back to a situation
which may well occur when the Prime Minister of the day, the incumbent
Prime Minister, does not have the ability to form a majority government.
From your description of his role the incumbent Prime Minister
is the facilitator; he has got to suggest to the Monarch an arrangement
that might work. That suggests an accommodating nature on the
part of the Prime Minister which not all of us immediately recognise
so far as the incumbent Prime Minister is concerned.
Chairman: Or some previous Prime Ministers.
Q54 Mr Hogg: No doubt some previous
ones as well, but we are talking about the incumbent one. That
being so, is there anybody to whom the Monarch can turn in the
event that the incumbent Prime Minister proves less successful
as a facilitator than we might all wish, for example the Cabinet
Secretary?
Lord Butler of Brockwell: No,
there is not. The Prime Minister is the Sovereign's principal
adviser, and it must be through the Prime Minister that this advice
comes. What we have described is what we regard as the national
duty of the Prime Minister.
Q55 Mr Hogg: Who is going to remind
the Prime Minister of the national duty?
Lord Butler of Brockwell: I do
not think there is any reason to suppose that this Prime Minister
would not fulfil his national duty.
Q56 Mr Hogg: That is your considered
opinion, Lord Butler!
Lord Butler of Brockwell: That
is my considered opinion.
Q57 Alun Michael: You said a few
moments ago that a Prime Minister should be forced to accept that
there is a heavy price to be paid for proceeding other than by
agreement. This was in relation to matters of judgment. Given
that weaknesses of personality apply on either side of the divide,
is it not necessary for there to be an equally heavy price to
be paid by a Cabinet Secretary who strays into making a political
judgment in expressing that disagreement?
Lord Turnbull: It is part of the
culture and ethos honed over many years that the Civil Service
led by the Cabinet Secretary is impartial; and somebody who is
seen not to be impartial I think would pay a price and would lose
the confidence of whoever came next. Part of the Civil Service
code says you are not only impartial—in other words you
will serve other people who may form a government—but in
your present role you have to give assurance to whoever aspires
to this, that you will serve them.
Q58 Alun Michael: The point I am
making is that we all hope that the highest levels of the code
will be observed by politicians and by civil servants, but it
does not always happen; and therefore when you are taking the
Cabinet Secretary into the area of having to exercise a judgment,
which is what this amounts to, it may get close to the point,
depending on the circumstances, that Lord Butler made very clear:
the expectation on the Cabinet Secretary and the Cabinet Office
is the support of the exercise, and the decision-making process
not entering into the political judgments themselves.
Lord Turnbull: There was a predecessor
who was dubbed "The Deputy Prime Minister", and that
is a position that no Cabinet Secretary should really ever want
to be in. I think that is an important sanction.
Lord Butler of Brockwell: A predecessor
as head of the Civil Service, not as Cabinet Secretary.
Chairman: At that point we can thank
you both very much indeed and invite our next group of witnesses.
1 Note by witness: I should like to make clear
that in my second answer to Q14, when I said that no Prime Minister
who had lost an Election has faced Parliament and been voted down
for nearly 200 years, I was referring to Elections in which another
party has gained an overall majority. It would have been more
correct to say "nearly 150 years". I am advised that
the first occasion in which a Prime Minister in such a situation
resigned without facing Parliament was Disraeli in 1868. In situations
when no other party had an overall majority, Salisbury faced Parliament
in 1886 and 1892 and Baldwin did so in 1924. Back
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