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Cabinet Office quest for written constitution should worry historians

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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. He had provided the Committee with a document, Elections & Government Formation, setting out the Civil Service understanding of the appropriate arrangements, intended to form part of 'the Cabinet Manual' that will appear after the general election. As O'Donnell put it, the Manual will be:

the first, comprehensive account of the workings of Cabinet Government and will consolidate the existing unwritten, piecemeal conventions that govern much of the way central government operates under our existing constitution into a single written document.

Depending on the outcome of the General Election, the Cabinet Manual project will be followed by the 'All Party Commission to chart a course to a Written Constitution' referred to in the recently published Labour manifesto. Whether or not the production of the Manual leads on to something more, it is an important process. If there is no further headway, then the Manual will become the closest equivalent to a 'written constitution' for the UK. If progress is made, then the Manual will have served as the key opening statement, helping frame the subsequent debate.

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. Discerning their existence involves the study of precedent: things which have - and have not - happened over time, and what those at elite level, when faced with particular sets of circumstances, believed were the range of acceptable options open to them, regardless of which course of action was actually followed.

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.

The approach to history adopted by the Cabinet Office creates the following problems:

  • As argued in a recent Democratic Audit paper, the study of precedents is exceptionally subjective. For every precedent pointing one way, it is often possible to find another contradicting it. And the same precedent can be interpreted in different ways. History cannot provide the constitutional exactitude which the Cabinet Office seems to claim for it.
  • It is questionable whether (often contested) historical interpretations of the UK constitution should be used as a basis for official definitions of it. There is a danger of 'constitutional feedback', with the views put forward by particular historians becoming self-fulfilling as they are adopted formally into the constitution.
  • The study of constitutional history reveals that the UK settlement is constantly changing, albeit often in small ways, hence O'Donnell's description of conventions as 'piecemeal'. Attempts to create a single fixed document may be questionable, as it is not clear whether and how new precedents overturn existing conventions.
  • Finally, establishing that something has been done a certain way in the past does not justify its repetition in the present. True legitimacy must involve adherence to values which cannot be divined from precedent alone.

A more democratically satisfactory process would involve an open procedure with some element of popular engagement, rather than an in-house Cabinet Office operation. Reasoned decisions should be made on the basis of evidence submitted publicly by a variety of different interested parties, amongst whom historians and their varied interpretations should form an important component.

Please note: Views expressed are those of the author.

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