HC 528 Lessons from the process of government formation after the 2010 general election
Further letter submitted by the Cabinet Secretary to the Chair of the Committee
I appreciated the chance to speak to the Political and Constitutional Reform Committee on 4 November on the 2010 government formation. It was very useful to hear the views of the Committee, and I await the outcome of your inquiry with interest.
Thank you also for your letter of 8 November 2010, asking about the relationship between the Cabinet Manual and a written constitution. As I said last week, when I appeared before the Committee, the Cabinet Manual brings together existing laws and conventions that govern the operation of Government. It is not a written constitution, which would be a fundamentally different document with a completely different status, and broader in scope and application.
As you point out in your letter, it is of course the case that the then Prime Minister’s announcement in February was made in a speech to IPPR, and not to Parliament, and I apologise for the mistake. As set out in Annex B, the group announced by the then Prime Minister, Gordon Brown (to consider the aspects of law and the relationships between each part of the state and between the state and the citizen that should be deemed ‘constitutional’), was never convened due to the General Election, and so did not publish any reports or other documents.
I also promised to follow-up on three points during my evidence last week, and I include information on those issues in this letter:
First, on the work done by the civil service under the last Government on investigating a written constitution, I attach a note (see Annex A) which sets out the publications and initiatives in which a written constitution was discussed.
Second, I said I would write about the status of MPs between a general election and when a member takes the oath or affirms. A person becomes a Member of the House of Commons on the day on which the writ for his election to the House is returned (usually the day after the election).
The law prohibits Members who have not taken the oath or affirmed from voting in the House or sitting during any debate at any time after the Speaker is chosen by the House. Members who decline to take their seats do not receive a salary but they are entitled to claim expenses and to use the facilities of the House provided for Members.
The entitlement to expenses and the use of facilities originates in resolutions of the House in 2001. IPSA’s MPs’ allowances scheme operates in that context. In future, the time from which Members’ salaries are payable will be fixed by section 4 of the Parliamentary Standards Act 2009 (as substituted by section 29 of the Constitutional Reform and Governance Act 2010), when it comes into force. Government departments treat correspondence from Members who have not taken the oath or affirmed in the same manner to letters from Members who have. Members who have not taken the oath are also disregarded for the purposes of some references to MPs in Part 1 of the Political Parties, Elections and Referendums Act 2000. More information about the law and practice relating to the oath can be found in House of Commons Library Research paper 01/116. The issue of how to involve MPs in post-election negotiations is a matter for the party leaders.
Lastly, I also enclose a summary (see Annex B) detailing whether other countries (in the EU or the Commonwealth) have a set period between a general election and the formation of a government.
I hope this is helpful, and I will be in touch in due course to discuss the Cabinet Manual further.
12 November 2010
ANNEX A A Written Constitution – Publications and Initiatives
This note summarises work undertaken by the previous government between 2007 and 2010 on:
1.
The Governance of Britain" Green Paper
2.
"Rights and Responsibilities: developing our constitutional
Framework": Green paper
3.
Deliberative events – "People and Power: shaping democracy,
Rights and responsibilities
4.
A Written Constitution Group
1. The Governance of Britain Green Paper
[1]
3 July 2007
The Ministry of Justice published the Governance of Britain Green Paper. The proposals in the green paper sought to address two fundamental questions: how should we hold power accountable, and how should we uphold and enhance the rights and responsibilities of the citizen?
Part 4, ‘Britain’s future – the citizen and the state’, set out a case for a written constitution and these sections are reproduced below:
Constitution
·
211. In parallel to consideration of the articulation of the rights of each citizen is the articulation of our constitution. Constitutions should allow the citizen to understand and fully engage with the state and state institutions. The vast majority of countries have codified, written and embedded constitutions. The
UK
has not. Instead, the British constitution has four principal sources – statute law, common law, conventions and works of authority, such as those of Walter Bagehot and A.V. Dicey – among which, under the doctrine of parliamentary sovereignty, statute law is preeminent. Partly by virtue of the political stability since the end of the 17th century, there has been no key event that has led to the need for one document setting out the rules on issues such as the length of parliamentary terms, the method of election to the House of Commons and appointment to the House of Lords, the powers of the judiciary, the powers of the devolved authorities, and the method whereby bills become law.
·
212. Today, we have to ensure that our country remains a cohesive, confident society in dealing with the challenges of the 21st century. Previous sections of this document have discussed the need to provide a clearer articulation of British values, and greater clarity about the nature of British citizenship. But there is now a growing recognition of the need to clarify not just what it means to be British, but what it means to be the
United Kingdom
. This might in time lead to a concordat between the executive and Parliament or a written constitution.
·
th European Convention on Human Rights
·
213. It is clear that neither a Bill of Rights and Duties nor a written constitution could come into being except over an extended period of time, through extensive and wide consultation, and not without broad consensus upon the values upon which they were based and the rights and responsibilities which derived from them. The process of national debate through which the Government proposes to develop a British statement of values provides an opportunity to begin exploring the issues that would need to be considered. But this can only be considered as the start of a much longer process. The fundamental and constitutional nature of the guarantees provided in such instruments – as fifty years’ experience of the European Convention on Human Rights has demonstrated – require both government and Parliament to proceed with caution.
·
214. Our national identity is founded in the values we hold in common, manifest through our history and our institutions. If we are to forge the shared sense of national purpose we need to meet the economic and social challenges ahead, our institutions must reflect those values.
·
215. The programme of constitutional reform set out in this document seeks to meet that objective by renewing our democracy. This task does not fall to government alone, but to all the people of these islands – and the discussion now begins.
2. Rights and Responsibilities: Developing our Constitutional Framework (Green Paper)
[1]
March 2009
The Ministry of Justice published a Green Paper exploring whether our rights and responsibilities should be drawn together in one place, perhaps in a Bill of Rights and Responsibilities, where they might be easily accessible and understood.
There is one specific reference in this Green Paper to a written constitution (on page 22):
While it would not be appropriate in the UK context for a Bill of Rights and Responsibilities to impose a series of new legally enforceable duties upon individuals, it is nonetheless instructive to see how other countries have chosen to give constitutional expression to such duties. Of course, what works in another country, which may have a codified system of law, a written constitution or a different social and political context, will not necessarily translate into our system.
The Green Paper also includes various references to a constitutional instrument/document:
·
Page 8 - A new constitutional instrument, reflecting the values that give rise to these rights and responsibilities, could act as an anchor for people in the UK.
·
Page 9 - Although not necessarily suitable for expression as a series of new legally enforceable duties, it may be desirable to express succinctly, in one place, the key responsibilities we all owe as members of UK society, ensuring a clearer understanding of them in a new, accessible constitutional document and reinforcing the imperative to observe them.
·
Page 10 - The time is right to discuss whether our existing framework is sufficient or whether we need a new constitutional expression of our freedoms and responsibilities and the values which underpin them.
·
Page 14 - The Government believes that any new constitutional instrument should encapsulate the responsibilities we owe towards one another.
·
Page 31 - The Government believes the time is right to explore the case for drawing together and codifying such rights in a new constitutional instrument.
The written constitutions of other countries were mentioned ranging from the US to South Africa.
3. Deliberative events and Report – "People and Power: shaping democracy, Rights and responsibilities
[1]
October 2009 – March 2010
As part of the consultation on rights and responsibilities, the Ministry of Justice ran a series of deliberative events around the UK with members of the public to discuss constitutional reform. A broadly representative sample of 457 people was independently recruited to participate in these events.
A report on the deliberative events was produced and published on the Ministry of Justice website
[1]
, which included several passages about a written constitution:
Executive Summary / Conclusions (pages 5 and 6)
·
Participants valued the principle of providing greater clarity about constitutional arrangements. However, debates around the benefits and limitations of introducing a written constitution to this end revealed a more mixed response: specifically that a written constitutional should explore the potential for reform rather than merely codify existing rights.
·
People were undecided on the need for a written constitution.
Section 5 – Key findings – Written Constitution (pages 52-54)
·
Participants were given a very high level introduction to the possibility of introducing a written constitution. While participants valued the principle of providing greater clarity about constitutional arrangements in the
United Kingdom
; debate highlighted the complexities involved in drafting a constitution in practice. Participants also struggled to make the connection between a written constitution and improving levels of trust between the public and the government, MPs and courts.
·
Potential benefits highlighted by participants included providing clarity and certainty to individuals about how constitutional arrangements worked. A further benefit could be that the process of introducing a written constitution has the potential to invigorate democracy in the
United Kingdom
. In addition, participants felt that this could instil a sense of pride in
Britain
’s democracy thereby building national identity. It could also provide an insight for migrants into how the British system of government is organised and what key principles are upheld. Finally, participants felt that a written constitution could provide a transparent, secure framework which would constrain future governments from making substantial changes to existing rights and responsibilities.
·
Participants also identified a number of potential limitations of introducing a written constitution. A key theme centred on concerns about the possible unnecessary replication of existing legislation which would waste time and financial resources. Participants also raised concerns about the perceived inflexibility of a written constitution which would mean that once formalised, it could not be changed in light of social changes. This was most strongly stated in light of international examples, such as negative perceptions of the entrenched right to bear arms in the US, which was an argument cited against a written constitution by one of the ‘talking heads’ as part of the balanced stimulus material presented to participants. A further issue highlighted by participants was the possibility of negative financial impacts, both in relation to the cost associated with producing the document and from potential increases in litigation resulting from it.
·
In particular, the polling results revealed an overall mixed response to introducing a written constitution, with just over 4 in 10 ten participants supporting the introduction of a written constitution, compared to just under 4 in 10 who did not support.
·
Participants struggled to make the connection between a written constitution and improving levels of trust between the public and the government, MPs and courts.
Section 6 – Conclusions – Written constitution (page 58)
·
There was only limited discussion on a written constitution and it was the only substantive issue explored by participants where there was no clear preference on an option to move forwards.
·
Nonetheless,
three key issues
emerged that will be instructive in taking forward debate in this area.
o
First, while participants valued the principle of providing greater clarity about constitutional arrangements in the
United Kingdom
, debate highlighted the complexities involved in drafting a constitution in practice. One of the key benefits was that it would provide a transparent framework for how power worked in the
UK
and circumscribe the ability of future governments from eroding rights and liberties. However, this strength was also one of its flaws – with the inflexibility of a written constitution meaning that once formalised, it could not be easily changed in light of changing social circumstances.
o
Second, a written constitution was not seen as the most pressing issue for parliament to wrestle with, given other social and economic priorities. Participants struggled to make the connection between a written constitution and improving levels of trust between the public and Parliament – though this may well have been because there was insufficient time to discuss constitutional reform options. Trust in government was seen as very important, and there is certainly potential to use reform as a means to reinvigorate the relationship between citizen and state. If the written constitution merely aimed to codify existing rights, there were substantial concerns about the potentially unnecessary replication of existing legislation which would waste time and financial resources.
o
Finally, while the courts were the most trusted institution to protect people’s rights, they were generally seen as the least bad option. While not subject to political pressures and restricted through law as to what action they could take – ultimately it was recognised that judges were not accountable to the electorate and there were difficulties in them shaping public spending priorities. Much of the kick back against Parliament related to the expenses scandal and a perception that MPs are motivated more by personal interests than the common good. When this controversy dies down, there is scope for exploring reform options in more depth.
4. A Written Constitution Group March 2010
The Ministry of Justice published a summary of responses to the Rights and Responsibilities Green Paper, which contained a reference to a speech by the then Prime Minister, Gordon Brown, on the 2 February 2010 in which he outlined how work on a written constitution would be taken forward:
·
53. It is worth recording also that the Green Paper consultation and complementary programme of deliberative research has contributed to the Government’s decisions to take forward other important constitutional changes. In a speech on transforming politics on 2 February 2010 the Prime Minister announced that the Cabinet Secretary would "lead work to consolidate the existing unwritten, piecemeal conventions that govern much of the way central government operates under our existing constitution into a written document"; and second, that "a group will be set up to identify … what aspects of law and relationships between each part of the state and between the state and the citizen should be deemed ‘constitutional’".
·
54. This work is progressing. The Cabinet Office is leading work on consolidating existing conventions about the way central government operates. This material will follow the pattern set out in the New Zealand Cabinet Manual, although its contents will of course reflect
UK
practice. A draft of the chapter on elections and government formation was presented to the House of Commons Justice Select Committee on 24 February. The final document should be ready for an incoming government to consider after the general election.
·
55. The Government is also working on setting up the group to look at the aspects of law and relationships between each part of the state and between the state and the citizen that should be deemed ‘constitutional’. The Government envisages that after the group looking at principles has reported, there will then be detailed consideration of how our existing laws and conventions fit in with those principles and which should be given the status of constitutional. The Government believes we have reached a cross-road on our constitutional journey. Now is the time to create a new constitutional settlement that meets the aspirations of the
UK
public with a more equitable distribution of power that places Parliament and the people at its heart.
The group mentioned by the Prime Minister was never convened due to the General Election, and so did not publish any reports or other documents.
ANNEX B A Representative Sample of EU and Commonwealth countries: period between general election and formation of government
|
Country
|
Is there a fixed period of Government formation after an election?
|
|
Austria
|
No
|
|
Belgium
|
No
|
|
Denmark
|
No
|
|
Finland
|
No
|
|
France
|
No
|
|
Germany
|
Yes
Basic Law for the Federal Republic of Germany
Article 63
[Election of the Federal Chancellor]
(1) The Federal Chancellor shall be elected by the Bundestag without debate on the proposal of the Federal President.
(2) The person who receives the votes of a majority of the Members of the Bundestag shall be elected. The person elected shall be appointed by the Federal President.
(3) If the person proposed by the Federal President is not elected, the Bundestag may elect a Federal Chancellor within fourteen days after the ballot by the votes of more than one half of its Members.
(4) If no Federal Chancellor is elected within this period, a new election shall take place without delay, in which the person who receives the largest number of votes shall be elected. If the person elected receives the votes of a majority of the Members of the Bundestag, the Federal President must appoint him within seven days after the election. If the person elected does not receive such a majority, then within seven days the Federal President shall either appoint him or dissolve the Bundestag.
|
|
Greece
|
Yes
Constitution, Article 84 :
"1. The Government must enjoy the confidence of Parliament. The Government shall be obliged to request a vote of confidence by Parliament within fifteen days of the date the Prime Minister shall have been sworn in, and may also do so at any other time. If at the time the Government is formed, Parliament has suspended its works, it shall be convoked within fifteen days to resolve on the motion of confidence…
"4. The debate on a motion of confidence or censure shall commence two days after the motion is submitted, unless, in the case of a motion of censure, the Government requests its immediate commencement; in all cases the debate may not be prolonged for more than three days from its commencement.
"5. The vote on a motion of confidence or censure is held immediately after the termination of the debate; it may, however, be postponed for forty-eight hours if the Government so requests."
|
|
Iceland
|
No
|
|
Italy
|
Yes
Constitution, Art.94:
"The Government must receive the confidence of both Houses of Parliament.
"Each House grants or withdraws its confidence through a reasoned motion voted on by roll-call.
"Within ten days of its formation the Government shall come before Parliament to obtain confidence.
"An opposing vote by one or both the Houses against a Government proposal does not entail the obligation to resign.
"A motion of no-confidence must be signed by at least one-tenth of the members of the House and cannot be debated earlier than three days from its presentation."
|
|
Luxembourg
|
No
|
|
Netherlands
|
No
|
|
Norway
|
No
|
|
Portugal
|
Yes, in practice
Constitution, Art.125:
"(1) The President of the Republic shall be elected during the sixty days prior to the end of his predecessor’s term of office, or during the sixty days after that office becomes vacant.
"(2) Elections shall not take place during the ninety days prior to or following the date of elections to the Assembly of the Republic.
"(3) In the case provided for in the previous paragraph, the election shall take place during the ten days following the end of the period set out therein, and the term of office of the outgoing President shall automatically be extended for the necessary period of time."
Art.187:
"(1) The President of the Republic shall appoint the Prime Minister after consulting the parties with seats in Assembly of the Republic and in light of the electoral results.
"(2) The President of the Republic shall appoint the remaining members of the Government upon a proposal from the Prime Minister."
Art.192:
"(1) Within at most ten days of its appointment, the Government shall submit its Programme to the Assembly of the Republic for consideration, by means of a Prime Ministerial statement.
"(2) In the event that the Assembly of the Republic is not in full session, its President shall obligatorily call it for this purpose.
"(3) The debate shall not last for more than three days, and until it is closed, any parliamentary group may make a motion rejecting the Programme, and the Government may request the passage of a confidence motion."
Art.194(2):
"No confidence motions shall only be considered forty-eight hours after they are made, and the debate thereon shall last for no more than three days."
The Government shall resign following the rejection of the Government’s Programme, the failure of a confidence motion, or the passage of a no confidence motion.
|
|
Spain
|
Yes
Constitution, Section 99
(1) After each renewal of the Congress and in the other cases provided for under the Constitution, the King shall, after consultation with the representatives appointed by the political groups with parliamentary representation, and through the Speaker of the Congress, nominate a candidate for the Presidency of the Government.
(2) The candidate nominated in accordance with the provisions of the foregoing subsection shall submit to the Congress the political programme of the Government he or she intends to form and shall seek the confidence of the House.
(3) If the Congress, by vote of the overall majority of its members, grants to said candidate its confidence, the King shall appoint him or her President. If overall majority is not obtained, the same proposal shall be submitted for a fresh vote forty-eight hours after the previous vote, and confidence shall be deemed to have been secured if granted by single majority.
(4) If, after this vote, confidence for the investiture has not been obtained, successive proposals shall be voted upon in the manner provided for in the foregoing paragraphs.
(5) If within two months of the first vote for investiture no candidate has obtained the confidence of the Congress, the King shall dissolve both Houses and call for new elections, with the countersignature of the Speaker of the Congress.
|
|
Sweden
|
Yes
The Instrument of Government:
Chapter 6. The Government
Art. 1. The Government consists of the Prime Minister and other ministers.
The Prime Minister is appointed in accordance with the procedure laid down in Articles 2 to 4. The Prime Minister appoints the other ministers.
Art. 2. When a Prime Minister is to be appointed, the Speaker summons for consultation representatives from each party group in the Riksdag. The Speaker confers with the Deputy Speakers before placing a proposal before the Riksdag.
The Riksdag shall proceed to vote on the proposal no later than the fourth day following, without prior preparation in committee. If more than half the members of the Riksdag vote against the proposal, it is rejected. In any other case, it is adopted.
Art. 3. If the Riksdag rejects the Speaker’s proposal, the procedure laid down in Article 2 is repeated. If the Riksdag rejects the Speaker’s proposal four times, the procedure for appointing a Prime Minister is abandoned and resumed only after an election for the Riksdag has been held. If no ordinary election is due in any case to be held within three months, an extraordinary election shall be held within the same space of time.
|
|
Switzerland
|
No
|
|
Australia
|
No
|
|
Canada
|
No
|
|
India
|
No
|
|
Ireland
|
Yes in practice.
Art.12(7):
"…every subsequent President shall enter upon his office on the day following the expiration of the term of office of his predecessor or as soon as may be thereafter…"
Art.13(1)-(2)
"The President shall, on the nomination of Dail Eireann, appoint the Taoiseach, that is, the head of the Government or Prime Minister.
"The President shall, on the nomination of the Taoiseach with the previous approval of Dail Eireann, appoint the other members of the Government."
Art.16(4)(2):
"Dail Eireann shall meet within thirty days from that polling day [viz. the general election]."
|
|
New Zealand
|
No
|
|
South Africa
|
Yes in practice.
Art. 51(1):
"After an election, the first sitting of the National Assembly must take place at a time and on a date determined by the Chief Justice, but not more than 14 days after the election result has been declared."
Art. 83:
"The President-
"(a) is the Head of State and head of the national executive."
Art. 86(1) of the Constitution:
"At its first sitting after its election, and whenever necessary to fill a vacancy, the National Assembly must elect a woman or a man from among its members to be the President."
Art. 91(2):
"The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them."
|
|
|
|
Northern Ireland
|
Yes
Within a period of seven days beginning with the first meeting of the Assembly after an election, the offices of First Minister and deputy First Minister shall be filled.
|
|
Scotland
|
Yes
Following a general election, the Parliament shall within 28 days nominate one of its members for appointment as First Minister. (This is subject to extension in set circumstances.)
|
|
Wales
|
Yes
Following a general election, the Assembly must, within 28 days, nominate an Assembly member for appointment as First Minister. (This is subject to extension in set circumstances.)
|
|
