Tuesday, 4 May 2010

Where our Constitution is written down - in a draft memo from the Cabinet Office

It is curious to me that the closest we have to a written constitution is a long memo written in draft by some civil servants.  Other nations build massive halls of marble to house their sacred constitutional texts.  We keep ours in a draft chapter of a draft handbook.  Other nations have referenda and great national debates on what should be in their constitutions  - we ...don't - we just ask Sir Humphrey to take a quick note...

The Cabinet Office has been good enough to let us have a look at a draft chapter (number 6) of a handbook which gives constitutional advice to civil servants.

Chapter 6 is important because it tells us what our constitution requires in the event of a hung parliament - perhaps this is why the civil service have rushed out the draft version of the chapter (why in draft  - is that so the civil service can change the constitution if it is not what the politicians need post-Thursday?  We do have a flexible constitution!).  Professor Bogdanor comments on it here: In a hung Parliament, the Queen’s task is to endorse choices made by politicians - Times Online 

The chapter has things in it like this:

The principles of Government formation

14. Governments hold office by virtue of their ability to command the confidence of
the House and hold office until they resign. A Government or Prime Minister who
cannot command the confidence of the House of Commons is required by
constitutional convention to resign or, where it is appropriate to do so instead, may
seek a dissolution of Parliament. When a Government or Prime Minister resigns it is
for the Monarch to invite the person whom it appears is most likely to be able to
command the confidence of the House of Commons to serve as Prime Minister and
to form a government. However it is the responsibility of those involved in the
political process – and in particular the parties represented in Parliament – to seek to
determine and communicate clearly who that person should be. These are the
principles that underpin the appointment of a Prime Minister and formation of a
government in all circumstances.

This is apparently the constitutional process in the event of a hung parliament:

“Hung” Parliaments
16. Where an election does not result in a clear majority for a single party, the
incumbent Government remains in office unless and until the Prime Minister tenders
his and the Government’s resignation to the Monarch. An incumbent Government is
entitled to await the meeting of the new Parliament to see if it can command the
confidence of the House of Commons or to resign if it becomes clear that it is unlikely
to command that confidence. If a Government is defeated on a motion of confidence
in the House of Commons, a Prime Minister is expected to tender the Government’s
resignation immediately. A motion of confidence may be tabled by the Opposition, or
may be a measure which the Government has previously said will be a test of the
House’s confidence in it. Votes on the Queen’s Speech have traditionally been
regarded as motions of confidence.

17. If the Prime Minister and Government resign at any stage, the principles in
paragraph 14 apply – in particular that the person who appears to be most likely to
command the confidence of the House of Commons will be asked by the Monarch to
form a government. Where a range of different administrations could potentially be
formed, the expectation is that discussions will take place between political parties on
who should form the next Government. The Monarch would not expect to become
involved in such discussions, although the political parties and the Cabinet Secretary
would have a role in ensuring that the Palace is informed of progress.

18. A Prime Minister may request that the Monarch dissolves Parliament and hold a
further election. The Monarch is not bound to accept such a request, especially
when such a request is made soon after a previous dissolution. In those
circumstances, the Monarch would normally wish the parties to ascertain that there
was no potential government that could command the confidence of the House of
Commons before granting a dissolution.

19. It is open to the Prime Minister to ask the Cabinet Secretary to support the
Government’s discussions with Opposition or minority parties on the formation of a
government. If Opposition parties request similar support for their discussions with
each other or with the Government, this can be provided by the Cabinet Office with
the authorisation of the Prime Minister.

20. As long as there is significant doubt whether the Government has the confidence
of the House of Commons, it would be prudent for it to observe discretion about
taking significant decisions, as per the preelection period. The normal and essential
business of government at all levels, however, will need to be carried out.

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