Thoughts on politics and life from a liberal perspective

Tuesday, 4 May 2010

Tories make the case for written constitution

Sunder Katwala has an interesting post on Next Left this morning where he highlights a report in the Guardian which discusses how David Cameron and The Conservatives are very unhappy with the current constitutional arrangement whereby the Prime Minister remains in office in the case of no party having an overall majority and gets the first chance to try and form a government that commands the confidence of the Commons. There are suggestions that David Cameron may try and use his media cheerleaders to shout loudly about the unfairness of this (if the Conservatives have the largest number of seats) and effectively "demand the keys to No 10". This way he would get the chance to form a government first and thus be seen as the "rightful" PM.

It would be a bit like the strategy of George Bush in 2000 when he declared himself the winner of the uncertain election there (and Gore foolishly conceded - although he later retracted the concession) once Fox had called the election for him. The momentum was then behind Bush and some suspect it helped him ultimately become President.

The Guardian report suggests that Cameron would "ignore the guidelines" for what would happen in this situation.

The Conservatives have been the party most opposed to a written constitution and yet this example shows very clearly why we need one. Surely it would be a nonsense for a political leader to ignore convention and decide what the best thing to do in the event of no party gaining an outright majority?

This is exactly the sort of reason why we need a properly codified constitution so that everyone knows where we stand and "new precedents" cannot be set on a whim for partisan advantage of the day.


Carl Gardner said...

To call for a written constitution is a lazy and I think escapist response to all this, Mark. To make the case, you also need to make clear what you think this written constitution should say, and why that'd work better than what we have now.

So what would it say? "In a hung Parliament, the leader of the biggest party must be appointed PM"? What would be the good of that, if in reality LibDem-Lab negotiations were getting somewhere and LibDem-Tory ones weren't? You'd have to have a second rule that "If he/she can't command a majority, then someone who can has to be appointed instead". Which is the fundamental rule we have now.

The only practical change these rules would bring in would be that Cameron would be caretaker PM during inter-party negotiations, rather than Brown continuing as caretaker PM during those same discussions. Just making that change, and just writing anything down, would be no magic bullet solution to who should govern in substance.

Rather than risk the silly spectacle of a revolving door, isn't it actually more sensible to say: Brown is the incumbent, outgoing PM; he should resign as soon as it's clear who will lead the new administration?

Jock Coats said...

Of course, Dave's fave Brasenose constitution tutor made it clear he had been involved in writing the Cabinet Office Manual thing that's been going on for the last few months. Some have been claiming that this even amounts to a written constitution in all but name as it is the first time the arcane procedures have been systematically documented.

daniel said...

I think that, with respect, Carl misses the point. It is the fact that the situation described is governed by non-binding convention or guidelines (and so can be disregarded as highlighted by Mark)that suggests that a codified constitution (which would be binding)would serve this country much better then the inchoate constitution we now have.A codified constitition would give certainty as to the correct procedure in the case of the situation described by Mark and any challenge to this would either be unlikely or would need to be considered by a constitutional court. What is the point of having constitutional conventions and guidelines if they are not binding and so can be avoided or disregarded in the event that they do not suit a particular party?

sanbikinoraion said...

I'd like to see Call Me Dave try throwing the PM out of Downing Street prematurely. He does *actually* live there, after all!

Duncan said...

Yeah, but what will they put in it? Will we have Tory manifesto commitments like 'we'll never enter into a treaty without having a referendum'; that could be a pain in the ass. I suppose it would up the ante for improving the education system.

Carl Gardner said...

Daniel, what's the convention anyone is thinking of avoiding or disregarding? I don't think anyone is remotely suggesting any convention will be or should be ignored.

You're wrong if you think our constitution includes any rule of any kind saying that the Queen has to appoint the leader of the largest party to be PM, or that Gordon Brown has to resign on May 7th if Labour isn't the biggest party. He wouldn't be disregarding it - there never has been any such rule.

If you do want that to be the rule, then you want to change the rules, not just write them down. And as I said earlier, you then have to consider whether you want to impose that rule regardless of whether the biggest party leader can actually govern.

And do you really think a sensible way of settling who governs after 6 May is by a series of applications to the Supreme Court? If not - if you think politicians should behave responsibly to ensure a smooth transition of power and avoid a legalistic constitutional fight - then in effect you're arguing for matters to be decided not by strictly binding rules, but by convention.

Carl Gardner said...

Sorry, Daniel - of course your point was that David Cameron, not Gordon Brown, would be disregarding convention. I was being stupid.

But doesn't the fact that this is convention precisely stop Cameron from precipitating a crisis by, say, applying to court? How would having a written constitution actually stop David Cameron moaning about it, and even causing trouble, if he thought the written constitutional rule was wrong? How would you stop him causing trouble about it? Would the written constitution ban him from, say, asking the Queen to summon Parliament early, or tabling a confidence motion and trying to get it debated and voted on even before the Queen's speech? Or tabling motion of no confidence in the Speaker if his motion had to wait?

Ultimately you have to rely on politicians' sense of constitutional propriety. Written rules aren't a panacea.

daniel said...

No worries Carl. The point regarding constitutional conventions is that they are not binding or enforceable. If the situation described arose in the case of a codified constitution then the procedure and any regulations would be clear and certain. Clarification of the law on any constitutional issue could be sought from a constitutional court if required however the codified constitution would have been drafted and debated by parliament and, possibly, have been voted on by way of a referendum.As such, the situation as described would be unlikely to occur. A codified constitution may well incorporate alot of the constitutional conventions and guidelines that we now have and would likely include new rules regarding the operation of the constitution.However, if codified, the constitutional rules would at least be clear and certain and, as Mark put it, 'not subject to the partisan whims' of individual party leaders. Codified constitutions certainly do not solve all ills, they can be quite rigid and difficult to amend (a good example of this is the constitutional right to bear arms in the USA), but they do allow for politicians (and lay persons)to more easily determine what the constitutional procedures/regulations are for the examples that you give.

Cardinal Richelieu's mole said...

This states exactly why a written constitution is bad news - "The point regarding constitutional conventions is that they are not binding or enforceable. If the situation described arose in the case of a codified constitution then the procedure and any regulations would be clear and certain. Clarification of the law on any constitutional issue could be sought from a constitutional court if required " and empirical evidence is provided most amply by the example of the USA which suffers under a krytocracy that frequently overturns the will of the people, as expressed in legislation passed by their representatives.

The USA also shows the severe limitations of having a constitution that in practise is too often incapable of adapting to serve the needs of the people. An example is the "right to bear arms". At the time of drafting, it made some sense given the prevailing conditions: now it is a charter for lawlessness by evildoers. A further example is the "right to freedom of expression", now a charter for the most depraved and corrupting pornographers and bigots.

Dingdongalistic said...

Didn't the Cabinet secretary set out clear details of the Civil Service's approach in the event of a hung Parliament? If so, then Cameron ought to know what he should do.

I've nothing against codifying a few conventions, and indeed would prefer that to some of the royal prerogative powers. It's a good way of reforming Parliament to make it more effective. But a codified constitution would have to go a lot further, and describe the entire system of government. And I don't see any convention being able to come up with a document which proves satisfactory enough to enough people to be worth the bother of the whole thing.

Countries tend to need a new, codified constitution after events of great turmoil. A short tiswas about a hung parliament will hopefully not count as that, particularly if, as Peter Kellner suggests, the conventions currently favour an opposition if they are patient.

Jock Coats said...

Oh great grey eminence, I trust you mean that the erosion of the right to bear arms is a charter for lawlessness by evil doers as you put it?

The law abiding actually abide by anti-weapons changes which over time have systematically disarmed those lawful and left weapons primarily in the hands of criminals anyway against whom people are now unable to defend themselves.

Same goes for here, and virtually everywhere guns and other weapons have been legislatively prohibited.

Cardinal Richelieu's mole said...

No, Jock Coats - I mean as stated, that the right to bear arms has become an evil doers charter because Congress cannot pass any proper gun control leglislation.

The NRA parrots the argument that only the lawless would then have guns but this sets up a false comparison. It there was no legal trade in guns, making them readily available, many of the lawless would have to go without. The proper people to confront the lawless evil doers are the police.

The US Constitution is an inflexible document, deliberately hard to change expect in fact by rulings, sometimes seen as bizarre, by judges appointed for life and not accountable in any democratic sense.

Jock Coats said...

There is very little evidence that firearm bans slow down violent crime and homicide rates. Indeed, if there is a balance it would appear that these types of crime increase.

You are not going to uninvent firearms, and you are not going to prevent them getting into the hands of those most desperate to get them even without a legal market in them (only ten per cent of guns used in crime in the UK, with a pretty comprehensive ban, were ever legally held).

When you can provide a police officer outside every home then I might concede we do not need to have the right to defend ourselves, but god forbid there should ever be so many idle hands with the power of the state behind them. Until then, until they can get a defence officer to your door in the moments between the windows being jemmied and me reaching the telephone and then being kept on hold while my underpant size is recorded for future reference, then the right to self-defence must remain a fundamental right.

The US constitution is a flimsy document that can be bent whichever way the federal government wants. Certainly the size of government in the US today bears no relation to what was intended by the founders.

But you are right about monopolistic judges. Justice should be open to competitive forces too.