Andrew Blick: Proposal for UK Constitution Should Worry Historians
[Dr Andrew Blick is Senior Research Fellow, Democratic Audit, and co-author, with Stuart Wilks-Heeg, of Governing without majorities: Coming to terms with balanced Parliaments in UK politics.]
The Cabinet Office is currently engaged in a process of defining the UK constitution. But its approach gives grounds for concern. First, there is a democratic deficiency in the closed nature of the process being followed. No public consultation has been held, with the Cabinet Office drawing in outside advice largely confidentially and on terms it sees fit. Second, the use being made of history is a particular cause of unease. The discipline should have an invaluable role to play in devising a written constitution for the UK, with the application of past experience being used to broaden present debate. There is a danger at present that it is being used to close off discussion.
On 24 February this year the House of Commons Justice Committee heard evidence from the Cabinet Secretary Sir Gus O'Donnell, on the constitutional processes that would apply in the event of a hung parliament....
Defining the 'piecemeal conventions' of the UK constitution is a central part of the project set out by O'Donnell. But conventions are, by their nature, amorphous since they are not legally enforceable and often not clearly defined in written form....
In other words, conventions are grounded in history, which is being used as a legitimising device in the Cabinet Office statement of the existing UK settlement. In his session with the Justice Committee, O'Donnell said, 'we have looked back to history', and mentioned professors 'Bogdanor, Brazier, Hazell and Hennessy' among the constitutional experts who had assisted him. But we are not told precisely what advice the professors gave, and the draft chapter of the Cabinet Manual largely lacks explanations as to how history supports its assertions about the UK constitution. This approach is methodologically unsatisfactory, particularly when it involves claims that are contested.
According to the resulting guidance, if the incumbent Prime Minister resigns with the Commons deadlocked, 'the person who appears to be most likely to command the confidence of the House of Commons' will be asked by the Queen to form a government - not necessarily the leader of the largest opposition party. Other analysts of UK constitutional history have a different reading of the precedents. Professor Robert Blackburn has argued that the leader of the largest opposition party should have priority after the departure of the incumbent, noting that this 'procedure for prime ministerial appointment was followed in each of the real hung Parliament situations arising from the general elections in 1923, 1929 and February 1974'. Professor Blackburn, though prominent in this field, was not consulted. The Cabinet Office is therefore vulnerable to the charge that it failed to canvas widely enough or that it sought out the views only of those who would tell it what it wanted to hear....