5 Cross-party co-operation
__________________________________________________________
The need and potential for
co-operation
128 The task of preparing and implementing a
codified constitution is essentially different to any other form
of official document or piece of legislation. It would be counter-productive
to the whole enterprise if pushed through Parliament on the basis
of a simple government majority. Insofar as all our constitutional
arrangements - legal or conventional - ultimately depend upon
the acquiescence of those who govern us, a party taking office
who had opposed the new code would be most likely to change or
repeal it causing instability and uncertainty.
129 Furthermore, whether the form of codification
was a non-legal Code or a legal instrument, if the initiative
or any draft document prepared were to be actively resisted by
the opposition parties, there is ample scope in the parliamentary
process to protract its passage through either or both Houses,
raising serious concerns about the expenditure of time in comparison
to pressing social and economic issues. If a referendum were held
in circumstances of political division, it would be self-defeating
to its wider national purpose of serving as a means of binding
and unifying the country.
130 Establishing a common ground between the
political parties on codifying the constitution, in terms of both
content and a framework for its preparation, presents the greatest
challenge to such an initiative becoming a practical proposition.
In a parliamentary system that has a more pronounced process
of opposition than almost any other in the world, any proposal
requiring cross-party support faces formidable difficulties.
131 In reality however, there is a great deal
of consensus on the fundamentals and basic elements of the constitution.
There may be some significant differences in terms of background
ideology, values and priorities about the constitution embedded
within Conservatism and the Left,[966]
but many proposals for constitutional change are cross-party in
nature, carrying varying degrees of members' support or dissent
within Conservative, Liberal Democrat and Labour parties.
132 Even on questions of substantive constitutional
reform, such as elections to the House of Lords or a Bill of Rights,
there are supporters and opponents to be found in each of the
parties, and on some issues there are All Party Parliamentary
Groups fostering cross-party dialogue such as the ones at present
on the Constitution and on the United Kingdom. For electoral purposes
and the credibility of maintaining a united front, the great majority
of party members will naturally support their leaders' policies
in public; but one should not mistakenly think the policy or attitude
of a party's front bench is necessarily reflected or agreed with
wholeheartedly by individual MPs, peers and party members.
133 Political attitudes to constitutional affairs
evolve over a period of time, in response to events and other
political changes taking place. For most of the past hundred years
Labour barely concerned itself with the constitution, in the belief
that it was largely a super-structural irrelevancy to securing
social justice and the implementation of the party's economic
and nationalisation programme.[967]
Yet this attitude was transformed under Neil Kinnock, John Smith
and Tony Blair, leading to the party's wide-ranging constitutional
reform programme on taking office in 1997. Meanwhile Conservative
opinion has radically changed on a raft of constitutional questions,
ranging from Scotttish and Welsh devolution, democratising the
House of Lords, relations with Europe, and citizenship rights
such as gay marriage.
134 All this suggests that there is certainly
the potential for cross-party talks on a codified constitution.
As already described, this proposal has steadily gathered momentum
across the parties since the Conservatives' Lord Hailsham's public
call for a written constitution in 1976. It has had consistent
support from Liberal Democrats in their policy programmes. The
Labour government began a process on a written constitution whilst
in government during 2009-10.[968]
The idea of codifying the constitution is essentially a pragmatic
one, not one born of socialist, social democratic, liberal or
conservative thought. For some it might be seen as a conservative
consolidation of the best elements of the UK state; for others
it might be viewed as a progressive modernising measure rendering
the constitution more accessible to the general public.
Formal conferences and other
institutional devices
135 Inter-party conferences were widely used
before 1922 as a method to resolve problems which could not be
dealt with by the normal machinery of party politics. The first
such conference was on the disestablishment of the Irish church
in 1869, and the second on the electoral reform and redistribution
proposals of 1884. Both of these conferences came about as a result
of disagreement between the House of Commons and the House of
Lords, whose statutory powers were, at that time, in theory unlimited.
Both yielded agreement on legislation, so preventing a constitutional
crisis. The next four conferences - on the abortive education
bill of 1906, on the constitution in 1910, on Irish Home Rule
in 1914, and on conscription in 1915, - did not succeed in resolving
problems.
136 In 1916, a conference was held at Buckingham
Palace, following the resignation of Asquith, to ascertain who
should be appointed Prime Minister, which resulted in the appointment
of Lloyd George, after it was ascertained that Asquith would not
serve under the leader of the Conservative Party, Bonar Law. In
1931, a similar conference was held at Buckingham Palace to decide
upon a new government following the failure of Ramsay MacDonald's
minority Labour government to agree upon an economy package. The
conference decided upon an emergency National Government under
the leadership of MacDonald, and laid down the conditions under
which the government would operate.
137 There have been a number of inter-party conferences
on reform of the House of Lords. In 1917-18, an inter-party Conference,
chaired by Lord Bryce, produced compromise proposals, but no action
was taken upon them. In 1948, a party leaders conference was held
to seek a consensus on Lords reform. It produced an Agreed Statement,
which came near to agreement on the composition of a reformed
House, but it could not agree on powers. The conference revealed
a difference in viewpoint between the Conservatives, who believed
that the Lords should enjoy a real delaying power to enable public
opinion to crystallise, and Labour, who regarded the Lords as
purely a revising chamber, and believed that a delaying power
could too easily be used to thwart the government of the day.
An inter-party conference on reform of the Lords during 1967 and
1968, agreed on the role of cross-benchers and on a delaying power
of six months, but could not agree on the categories and qualifications
for membership. The conference broke up after Conservative peers
voted down a Southern Rhodesia sanctions order in 1968, and the
government then proceeded to legislate without all-party agreement.
But the reform bill met with such opposition from back-benchers
of all parties who engaged in a determined filibuster that they
had to be dropped in 1969.
138 Inter-party talks of a less formal nature
were initiated on devolution in 1977, following the failure to
achieve a guillotine resolution in the House of Commons on the
Scotland and Wales bill in an attempt to break the deadlock. However
no agreement could be reached and the Labour government with the
support of the Liberals proceeded to new legislation on devolution
without all-party agreement.
139 The use of Royal Commissions, Speakers' Conferences,
select committees, and other constitutional reform bodies of inquiry,
may be useful to clarify areas of likely agreement and disagreement,
or to produce a for consideration, but is of limited practical
value for actually securing inter-party agreement. This is because
the memberships of such bodies, whilst usually containing members
drawn from across the political parties, have no power to bind
their party leaders.
140 Thus Royal Commissions[969]
have generally contained at least one member drawn from each of
the main political parties to represent their viewpoint, though
operating on an independent-minded basis, rather than representing
any agreed position of the party to which they belonged. In 1999
for example the Royal Commission on Reform of the House of Lords
included Lord Wakeham and Lord Hurd from the Conservative Party,
and Gerald Kaufman MP and Baroness Dean from the Labour Party.
The Liberal Democrats nominated Professor Dawn Oliver who had
served as an adviser to the party on constitutional affairs. The
same is true of Speakers' Conferences, which in the most recent
case convened in 2008 on issues of parliamentary representation
contained ten Labour MPs, four Conservative MPs, two Liberal Democrats,
and one Democratic Unionist.
Inter-party talks as part
of a Constitutional Convention
141 The innovation of a non-governmental Constitutional
Convention, established by persons and bodies seeking to gather
wide-ranging support and agreement for a scheme of Scottish devolution,
has been described above, and is the subject of a separate case
study in the Appendix.[970]
This was attended by representatives of the parties sympathetic
to devolution - Labour and the Liberal Democrats - but not by
the Conservatives who at that time were opposed to devolution,
nor by the Scottish nationalists who were committed to independence.
As is detailed below, the Convention also included representatives
of civil society in Scotland. A significant outcome of the Convention
was agreement that the Scottish Parliament should be elected by
proportional representation, a concession on the part of the Labour
Party during the negotiations. The Convention proved successful
both in terms of laying the scheme for devolution that formed
the basis of the Scotland Act 1998 (indeed when the legislation
was debated in Parliament, amendments to it were criticised on
grounds that they departed from the scheme agreed by the Convention
which had, so it was argued, achieved a consensus in Scotland)
and for pre-empting parliamentary hostility to devolution such
as had killed earlier proposals in the 1970s.[971]
Informal methods: the pre-IPSA
talks
142 There have been some recent episodes of cross-party
talks on the need for reform, held in circumstances of sensational
public controversy creating a sense of urgency for some action
to be taken in response. One of these arose against the background
of the furore created by the parliamentary expenses scandal in
2009. The daily front page embarrassing revelations in the Telegraph
newspaper about how MPs had been spending their allowances for
private purposes, which subsequently even led to some prosecutions,
had created an atmosphere bordering on hysteria at Westminster,
accompanied by outrage and damage in public confidence in the
political class generally in media and public opinion, especially
at a time of financial crisis and austerity.
143 The Speaker, Michael Martin, convened a meeting
of party leaders on his last day in office, to agree an interim
regime for MPs' expenses and how to go forward. All the party
leaders attended (Prime Minister Gordon Brown, David Cameron,
and Nick Clegg), together with the leaders of the minor parties
who had been invited. The paper considered was in the name of
the Speaker and had been prepared by parliamentary official. A
separate paper by Prime Minister was not discussed in detail.
The discussion led to an agreed plan of action, including the
principle of establishing an external body supervise and regulate
the operation of expenses in the future. This was a highly significant
constitutional step, for Parliament has traditionally been jealous
of, and resistant to, any external regulation of its internal
affairs, even by the courts.[972]
144 The government then took the lead in preparing
further cross-party talks to agree the details of the permanent
new body to be set up by statute. These meetings of about 30 people
in total were conducted at Leader of the House level, with Jack
Straw, Justice Secretary, leading and supported by a team of Ministry
of Justice officials. Alan Duncan, then shadow leader of the House,
represented the Opposition, with other important participants
including Sir George Young, the chair of the Privileges Committee,
and representatives of all the parties, together with the party
leaders in the House of Lords. Six meetings were held in a large
ministerial conference room at the House of Commons, directly
beneath the Chamber.
145 In practice, Jack Straw led in the meetings,
sharing with the others successive drafts of the Bill - itself
an unusual development. Jack Straw, who was supported by officials
from the Constitutional Secretariat in his department. His personal
diplomatic abilities combined with a frank and open style of handling
the debate and discussion made a significant difference. Another
factor promoting the success of the talks was the presence of
the minor parties, who had the effect of defusing some of the
tension that built up on occasion between the three main parties,
especially the contributions made by Elfyn Llwd for Plaid Cymru.
This was commented upon in the parliamentary debates on the Bill
later on, which became the Parliamentary Standards Act 2009 setting
up the statutory Independent Parliamentary Standards Authority
(IPSA).
Informal methods: the post-Leveson
talks
146 Another recent episode of all-party talks
on reform came in 2012-13 against a background of sensational
exposés of gross press misconduct into people's private
lives, including telephone hacking, leading to the closure of
the News of the World newspaper, some prosecutions of journalists
and senior managers in the press, and sensational revelations
in public headings before the House of Commons Culture Media and
Sport Committee and a public inquiry under the chairmanship of
Lord Justice Leveson set up to take evidence and bring forward
recommendations for regulatory reform. The general sense of outrage
in public opinion and among politicians created a political imperative
and sense of urgency that concrete reform had to follow the publication
of the Leveson report in November 2012.
147 As was the case in the pre-IPSA talks in
2009, initially the three party leaders (Prime Minister David
Cameron, Ed Miliband, and Nick Clegg) met together on the subject,
immediately after the House of Commons debate on the Leveson Report
on 29th November. The matter was then taken forward by the Culture,
Media and Sports Secretary, Maria Miller, who met separately with
a group of press victims and a group of press editors within the
next seven days, before convening a meeting with shadow spokesmen
from the other two main parties, Harriet Harman for Labour and
Lord Wallace for the Liberal Democrats. A key stumbling block
between the parties was whether the new form of press regulation
should be statutory or not, with Labour pressing for an Act of
Parliament as recommended by Lord Justice Leveson, the Conservatives
preferring a voluntary scheme set out in a Royal Charter, and
the Liberal Democrats open-minded on the issue.
148 At least six further meetings of all the
party representatives then took place over the next three months.
Oliver Letwin, a minister in the Cabinet Office and the Prime
Minister's principal policy adviser, emerged as the key broker
in the cross-party negotiations, presenting draft papers for discussion
with Justice spokesmen, including Lord Falconer (the former Lord
Chancellor and Justice Secretary) on the Labour side.
149 Further meetings between the three main party
leaders took place at two points when the negotiations stalled,
on 19th December 2012 and 13th March 2013. The last of these two
meetings ended in deadlock between Cameron and Miliband, resulting
in the Prime Minister announcing he would proceed without Opposition
support, followed by frenetic discussions with Nick Clegg and
the Liberal Democrats. Mr Clegg then played a key role in returning
to talks with Ed Miliband on 19th March, settling an agreed compromise
that included a statutory right to exemplary damages in actions
again publishers. The outcome was a Royal Charter dealing with
enforcement of a new code of practice governing the press, and
the matter of exemplary damages being dealt with by way of amendments
to the Crime and Courts Bill then passing through Parliament.
150 Factors that contributed to the successful
agreement reached as a result of the inter-talks included the
initial impetus provided by the Leveson report; the influence
of interested parties particularly the press and "Hacked
Off" campaign representing victims of press intrusion; a
tight schedule of timetabling and deadlines being kept to; the
parliamentary arithmetic, meaning the Liberal Democrats as coalition
partners had more leverage than had they been in opposition, and
conversely the Labour opposition had limited leverage apart from
exerting pressure through the media and exposing divisions of
opinion in the coalition (on which there had been no discussion
at the time of the coalition agreement in May 2010) and through
parliamentary stalling tactics; and "brinkmanship",
meaning that all sides recognised that some settled reform had
to be put in place as a matter of urgency before the end of the
end of the parliamentary session in May 2013.
Gordon Brown's initiative
on a written constitution
151 An attempt was made to initiate informal
inter-party talks on a written constitution by the last Labour
government under Gordon Brown's premiership in February 2010.
In a speech to the Royal Society of Arts,[973]
he said, "the question of a written constitution [is] an
issue on which I hope all parties can work together in a spirit
of partnership and patriotism". He went onto say that he
was convening an all-party group to begin the process of working
towards codifying the constitution:
"If we are to go ahead with a written constitution
we clearly have to debate also what aspects of law and relationships
between each part of the state and between the state and the citizen
should be deemed 'constitutional'. I can therefore also announce
today that a group will be set up to identify those principles
and I hereby issue an invitation to all parties to be represented
on this group. And if we are to decide to have a written constitution
the time for its completion should be the 800th anniversary of
the signing of the Magna Carta in Runnymede in 1215."
152 However, there is no record of any such group
or inter-party talks taking place, and it seems likely that both
David Cameron or Nick Clegg were unwilling to participate in any
such initiative. A 10 Downing Street Policy Unit seminar had been
held on the subject earlier in December 2009 but one whose membership
consisted of selected constitutional specialists in the subject
rather than politicians.
153 Given the proximity of the forthcoming general
election in less than four months' time, it would have been surprising
if David Cameron, then Leader of the Conservative Opposition,
had wished to enter into any form of collaboration with a government
he was intent on attacking generally. In the case of the Liberal
Democrat leadership, it became clear during the five days in May
during which time the three main party leaders were negotiating
on the formation of a new government from the hung Parliament,
that Nick Clegg was unwilling to co-operate with Labour whilst
Gordon Brown remained its leader.[974]
It seems therefore that politics and personalities played the
greater part in scuppering Gordon Brown's hopes for inter-party
talks on a codified constitution in 2010.
The Cook-Maclennan agreement
today
154 The failure of Labour-Liberal Democrat talks
in 2010 may be contrasted with the successful nature and outcome
of the 1996-97 inter-party negotiations and agreement between
those two parties. In summer 1996 the then Labour Leader in opposition,
Tony Blair, and the Liberal Democrat leader, Paddy Ashdown, set
up a Joint Consultative Committee on Constitutional Reform. This
was co-chaired by two senior party members, Robin Cook for Labour,
and Robert Maclennan for the Liberal Democrats. The personal chemistry
between both Blair and Ashdown, and between Cook and Maclennan,
is known to have been particularly good.[975]
The background to the talks was favourable too, after what they
both regarded as the monolithic tendencies of the Thatcher administration
and eighteen years of Conservative rule, fostering unity in opposition
and a preparedness to work together to strengthen the constitution.
155 The outcome of the Cook-Maclennan Agreement
in 1997 was that it formed an agreed agenda for constitutional
reform that the two parties endorsed and supported, leading to
eighty per cent being subsequently enacted. It included the widest-ranging
programme of reform since the nineteenth century, including devolution,
the Human Rights Act, the Freedom of Information Act, an elected
London mayor, removal of the great majority of hereditary peers,
putting some prerogative powers on a statutory footing, and creating
new independent commissions on human rights and electoral administration.
The successful nature of the 1996-97 inter-party talks also translated
into a special Cabinet Committee being set up by Tony Blair during
1997-2001 with terms of reference "to consider policy issues
of joint interest to the government and the Liberal Democrats".
156 Codifying the constitution was viewed by
Cook and Maclennan as being of less magnitude than their reform
programme in terms of substance, and was principally a matter
of form to be considered later on. As Cook commented in 2005,
"We have a constitution but it is spread across
many Acts of Parliament. It seems to be that there is nothing
wrong and a lot to be gained by bringing them together in one
coherent text. But in itself that will not change anything about
the constitution. It may, however, make it more accessible and
more readily understood."[976]
157 It seems that, whilst a written constitution
has risen as a policy objective within the Labour Party, it has
dropped down the list of priorities for the Liberal Democrat leadership,
despite its prominence in their policy documents and manifestos
in the past. It was not an item negotiated for during the coalition
talks in May 2010, in which the Liberal Democrat negotiators concentrated
in political reform matters on elections to the House of Lords,
a referendum on the Alternative Vote, and fixed-term Parliaments.
158 Currently therefore, Nick Clegg as Deputy
Prime Minister has not raised this matter with his Conservative
partners or pressed for any sort of initiative, however preliminary
in nature, believing there are more important priorities. Thus
in evidence to the House of Commons Political and Constitutional
Reform Committee, Nick Clegg said,
"I believe in a written constitution. There
are general differences between the parties, but what I would
be very reluctant to do is to allow a debate about a written constitution
to delay or hinder progress on a whole bunch of things that we
can just get on with... If you said, 'Let's scoop it all together
into some sort of great big jumbo exercise called the new written
constitution', it might feel neat, but it might also be fearfully
slow."[977]
159 In retrospect, this may appear a lost opportunity
to supporters of a codified constitution, for the Conservative
leadership was open to negotiation on Liberal Democrat policies
on the constitution as a set off for accepting other policies
of the Coalition such as University fees. In the event, among
the constitutional reform items they selected as a priority, electoral
reform and elections to the House of Lords were prominent failures,
and only fixed term Parliaments were introduced, which in any
event was principally of benefit to the duration of the Conservative
Party in office.
The role of the Head of State
160 During early inter-party conferences, a crucial
role was sometimes played by the monarch. It was indeed at Queen
Victoria's initiative that inter-party talks were held to resolve
differences between Commons and Lords on Irish Church disestablishment.
In 1914, George V urged the Prime Minister to call a conference
of party leaders to resolve the problems involved in Irish Home
Rule. Further Buckingham Palace conferences were held in 1915
- on conscription - in 1916 - to discover a successor to Asquith
- and in 1931, to secure agreement on a new government.
161 It would be highly unlikely today that Queen
Elizabeth would wish to play an active role in resolving political
differences. Following the 2010 election, for example, the Queen
deliberately remained at Windsor Castle while the coalition negotiations
took place, so that she could not be accused of seeking to influence
the outcome. Her Private Secretary, Sir Christopher Geidt, however,
did occupy a temporary office at the Cabinet Office during the
inter-party negotiations, to be kept closely informed of developments.
162 Wisely or otherwise, the next in line to
the throne has indicated he intends to perform a more proactive
role than his mother. Prince Charles, our future monarch, has
recently let it be known through his biographer and friend Jonathan
Dimbleby, that he might be prepared to use his "convening
power" to try to help facilitate general agreement where
that might be thought useful.[978]
Insofar as the Crown has a deep institutional interest in the
constitution and its formalities, Prince Charles might well be
extremely interested in any project to codify the constitution.
163 Some clarification about such a role is
important, however. The better historical precedents for a monarch
hosting inter-party conferences, such as the Buckingham Palace
conference on the Home Rule Bill in 1914 proposed by the then
Prime Minister Herbert Asquith, are as a means of facilitating
discussion, not to provide a platform for the monarch to play
a proactive role in determining the outcome.[979]
As Asquith had rightly stated to the King earlier in January 1910
during the storm over the Parliament Bill and future of the House
of Lords,
"It is not the function of a Constitutional
Sovereign to act as arbiter or mediator between rival parties
and policies; still less, to take advice from the leaders of both
sides, with a view to forming a conclusion of his own'.[980]
Lessons for the process of
codifying the constitution
164 From past experience, it would seem that
the following elements, or at least some of them together, would
be required to produce a successful outcome of any initiative
to codify the constitution.
165 A prior disposition of at least two, and
preferably three, of the three main political party leaderships
to the central aim and purpose of the reform proposal is necessary.
To take some early examples, in 1869 over Irish Church disestablishment,
in 1884-5 over the franchise and redistribution bills, and in
1916-7 over franchise reform, that pre-disposition was present
and produced a successful outcome. However, in 1906 over the Education
bill, in 1914 over Irish Home Rule, in 1929-30 over electoral
reform, and in the various inter-party talks on Lords reform,
agreement could not be reached because the predisposition to agree
was not present. In the very recent examples of the pre-IPSA and
post-Leveson inter-party talks, all parties were predisposed to
the need for more effective and independent press regulation.
166 The context and political atmosphere surround
the cross-party talks must carry some sense of urgency or imperative
to reach a conclusion and for action to follow. This has already
been considered in the context of the initiative for reform, and
what catalysts might arise, such as a traumatic event affecting
the political structure such as Scottish independence, a crisis
in the monarchy, or departure from the European Union, or a crisis
of public confidence in the political class brought on by a catastrophic
financial collapse in the country, and/or a concerted public and
media campaign of sufficient strength as to make it an electoral
issue.
167 Inter-party talks and meetings of a relatively
informal nature are more likely to produce a successful outcome,
with ad hoc arrangements on personnel, agenda, timing and location
of subsequent meetings to suit the stage at which negotiations
had reached. The more formal processes adopted in the conferences
held in the late 19th and early 20th centuries are less well adapted
to modern conditions, particularly the more tribal nature of party
politics today and the glare of modern media posing problems for
the confidentiality of proceedings. For settling the general principles
of a reform, a small meeting, preferably between the respective
party leaders seems most effective. Subsequent details can be
negotiated and agreed upon by the relevant Secretary of State
and his or her shadow counterpart, with the support of officials
as necessary for technical advice and information.
168 The personalities and personal chemistry
between the party leaders and respective party negotiators will
be important to a successful outcome, together with their diplomatic
and management skills and a genuine willingness to co-operate.
In other words, issues of human conduct are at least, if not more,
important than those of institutional structure for the cross-party
talks. There is evidence that the presence of minor parties at
the negotiating table has a mollifying effect on any in-grained
adversarial default approach taken by the three major political
parties.
966 See Blackburn, Case Studies, W and X. Back
967
Time spent on its attempt at Lords reform in the 1960s (which
failed) was justified on tactical rather than ideological grounds,
as a device to remove the second chamber's in-built Conservative
majority. Back
968
See below. Back
969
See Blackburn, Case Studies, B. Back
970
See Blackburn, Case Studies, D. Back
971
See also Kenyon Wright, The People Say Yes: The Making of Scotland's
Parliament (1997). Rev. Kenyon Wright was Chair of the Convention. Back
972
See Halsbury's Laws of England, 5th ed. Volume 78: Parliament
(2010), pp.862f. Back
973
"Towards a New Politics", 2 February 2010. Back
974
See Robert Blackburn, "The 2010 General Election Outcome
and Formation of the Conservative-Liberal Democrat Coalition Government",
Public Law (2011), pp.30-55. Back
975
This is made clear in subsequent diaries and memoirs: see Paddy
Ashdown, The Ashdown Diaries, Volume 1: 1988-1997 (2000);
Robin Cook, The Point of Departure (2003); Tony Blair,
A Journey (2010). Back
976
Looking Back, Looking Forward: The Cook-Maclennan Agreement,
Eight Years On (New Politics Network, 2005), p.11. Back
977
Oral evidence session, 19 April 2012, Q.205. Back
978
Jonathan Dimbleby, 'Prince Charles: Ready for Active Service',
The Sunday Times, 16 November 2008. Back
979
See Harold Nicolson, King George V: His Life and Reign (1952),
242-243. Back
980
Quoted in Roy Jenkins, Mr Balfour's Poodle (1954), 133. Back
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