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Changing the Rules by Stealth: the UK's Constitution is being written as the public follows the election

As all eyes are turned to the general election in Britain an extraordinary, private process is underway to codify the UK's unwritten constitution
Andrew Blick
28 April 2010

While we are distracted by the General Election, the people who remain in power regardless of the outcome - the Civil Service - are busy drafting our constitution for us; and we have not been invited to participate.
 
Gordon Brown announced in February this year that the Cabinet Office had been entrusted with what the Cabinet Secretary, Gus O'Donnell, has described as the task of producing "the first, comprehensive account of the workings of Cabinet Government". Under the heading of the "Cabinet Manual" - based on a simlilar document used in New Zealand - it "will consolidate the existing unwritten, piecemeal conventions that govern much of the way central government operates under our existing constitution into a single written document."
 
The contents of this document, which will be published in full some time after the General Election, are important. The proposed chapter headings show that it will deal with such issues as the monarchy; the Prime Minister and Cabinet; ministers and Parliament, the law and the Civil Service; relations with supranational organisations; and official information.
 
In many of these areas there is no precise agreement about what is the constitutional position; and whatever definition is arrived at is likely to be controversial.
 
For instance, the draft chapter on elections and government formation recently published revealed the official view of what should follow a General Election producing a so-called 'hung Parliament'. Regardless of whose party has won the most seats or votes, the incumbent Prime Minister, it states, has the right to try and form a government; and that in the event of the incumbent resigning, the leader of the largest opposition party is not automatically the next in line to be appointed premier, but anyone believed able to command the confidence of the Commons can be chosen. There is also a vague description of the role of the monarchy in this process, leaving open the possibility that the Palace will become involved in party politics. (For a discussion of hung parliaments and the plans for handling them, see the Democratic Audit paper Governing Without Majorities)
 
In little more than a week's time, some of these rules may be tested and found wanting; and be subject to intense public scrutiny and criticism. They would be more robust had the process of distilling our constitution been carried out in a more satisfactory fashion.
 
I have written on the History & Policy website about the closed way in which the Cabinet Manual is being drafted. An in-house Whitehall operation is taking place, with no public consultation, and the Cabinet Office drawing on the confidential advice of selected experts as it sees fit. (There has been a limited role for the House of Commons Justice Committee in commenting on the draft chapter that was produced). Yet any attempt to distil an entity as amorphous and subject to widely differeing interpretations as the UK constitution should surely demand the most open and broad of processes.
 
And there is a more fundamental problem. The premise of the Cabinet Office project is to define the constitution as it is, justified on a basis of what has gone before. From the democratic perspective, this approach is at the very least inadequate. Indeed, it hardly seems to be democratic at all. A proper constitutional exercise in moving as the Prime Minister has apparently instructed from an uncodified to a codified constitution, would be to determine what it should be in an open fasion, and to legitimise the instrument created through popular assent.
 
The current Cabinet Office exercise is a long way from this ideal of democratic constitution-making. If Labour and the Liberal Democrats get the opportunity to make good on their manifesto commitments to introduce written constitutions (and have the will to do so), they need to ensure a different approach is adopted.

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