The cabinet secretary, Gus O'Donnell, has just issued a 150-page draft cabinet manual that sets out how we are governed, and is being widely hailed as the foundation for a codified constitution. Although an unelected mandarin, he took it upon himself to give an interview in advance to the Telegraph and told them: "I think those who are in favour of a written constitution will start with it … It has never existed before; we've been waiting decades and decades for this."
Really? Let's put that little "we" on hold for a moment.
The document is not in any way a draft of a democratic constitution. It is a manual for British dictatorship. It is quite open about this. It states: "It is written from the perspective of the executive branch of government". It adds: "It is not intended to have any legal effect or set issues in stone. It is intended to guide, not to direct." In plain language, we can change it whenever we think it is best and it sets out how the executive can get away with whatever it can get away with.
The manual opens with what in any constitutional democracy would be a lie and in our second-rate version is arguably false as well as an outrage. This is how it sees Britain:
"The UK is a parliamentary democracy which has a constitutional sovereign as Head of State; a sovereign parliament, which is supreme to all other government institutions, consisting of the Sovereign, the House of Commons and the House of Lords, an Executive drawn from and accountable to Parliament, and an independent judiciary."
There is no mention of the rule of law. The judges are independent but parliament is supreme, meaning above the law, meaning it has the powers of, sorry to have to repeat the word, dictatorship. Once they could have got away with this formulation easily. Now it is harder, as someone slipped up and drafted the Constitutional Reform Act of 2005 which was passed by a sleepy parliament. Part 1 asserts that nothing in it overturns "The existing constitutional principle of the rule of law".
A constitutional principle – no less. But thanks to O'Donnell's old-fashioned legerdemain, like all good principles it has disappeared.
As for the actual section on ministers and the law, it states, "Ministers must act lawfully in taking decisions". Doesn't that make you feel proud? Have you ever seen a job description that felt it necessary to stipulate that you had to "act lawfully"? What then follows is a high-class villain's charter, a guide for the executive as to how, as they say, to stay on the right side of the law (where they have failed to change it).
I could go on: it sets out in clauses 122 and 123 how "The Prime Minister is responsible for the overall organisation of the Government … and departments do not have their own legal personality". This means that departments of state can be split, merged, reorganised, renamed, without any say by parliament (which is how, under Lord Mandelson, universities were snicked out of education and into business).
The section on ministers and parliament similarly is a guide for how to manage parliament. Clause 205 is a classic: "Ministers should consider publishing bills in draft for pre-legislative scrutiny, where it is appropriate to do so", like whenever.
There is nothing on ministers and the public. There is no sense whatsoever that "the executive branch" which includes the elected government has any duty or obligations towards the people.
So what's going on? Why has this outrage been published to the lone handclaps from the few remnants and detritus of the great and good still standing, like Peter Hennessy and Robert Hazell?
When O'Donnell's most outstanding predecessor Robin Butler was head of the civil service he was asked what the British constitution was and he answered, "It is something we make up as we go along". There is that mandarin 'we". It isn't you, and I or even readers of the Daily Mail, for whom I have the greatest respect, who "make it up". No, it is them. It belongs to them and they made it up. But to get away with it meant not shining light on the fact.
Then along came John Smith, who as leader of the Labour party committed it to a "new constitutional settlement". Smith died, Blair succeeded him and under him dramatic changes, parliaments, the Human Rights Act, freedom of information, were rammed through and the old constitution was broken. Along comes Gordon Brown, who had advised Smith, and declares we need to renew trust. Privately, he wanted to be "father of Britain" with a written constitution as his crowning achievement. But the original idea for this, that went back to Charter 88, was to create a democratic settlement, to turn subjects into citizens, to vest sovereignty in "we the people" with an open process akin to South Africa's (and polls always show around 70% support for a democratic constitution – although wisely few look to the powers that be to permit one).
But any attempt to trust the people, as opposed to bankers, and launch an open process withered away. In his last, gasping days of office, Brown instructed Gus O'Donnell to write down what we had, hoping the lure of a written (non) constitution would win the vote of an eccentric or two. Here is the result, the last steaming dump of Labour's lost opportunity.
Amusingly, Democratic Audit had already set out the status quo in writing when it published "The Unspoken Constitution". The idea was to expose how Britain is actually run thereby shaming people into change. It's open words were "We, the elite". It was meant as a joke. Ha bloody ha. We, that is to say we would-be citizens of this country, have not, repeat not, been "waiting decades" for this.