Constitutional Design for Coalition Government

A glance at the British press on the eve of the May 2010 general election would confirm many European observers in their suspicion that Britain is more than a little odd.  The prospect of a “hung Parliament” – one in which no one party has an overall majority – was met with fear, even disgust.

Why should this be so, when in most other European countries a balanced Parliament is regularly delivered by a proportional electoral system?  What is it about Britain that makes sharing power so difficult to accommodate in our system?

The answers to these questions are found in Britain’s unique constitutional set up.  The UK is one of a  handful of liberal-democracies without a supreme, codified and entrenched Constitution.  For all its majestic antiquity, the so-called “British Constitution” is really nothing more than a patchwork of ordinary laws, conventions and traditions which might guide, but do not necessarily bind or restrain the exercise of public power.  There is no one binding text to which the British (unlike the Irish, Swedes, Germans or French) might appeal when difficulties of interpretation arise, and there is no clear process, such as referendum or a two-thirds majority vote in both Houses, by which changes to the rules can be democratically legitimised.

Gordon Brown, realising the grave political danger of such uncertainty, had instructed his Cabinet Secretary, Sir Gus O’Donnell, to draw up a Cabinet Manual clarifying the “existing conventions” in the event of a hung Parliament. Throughout the election campaign Brown declared, on the authority of that Manual, that he had a “constitutional right” to remain in office and to have the first attempt at maintaining a Government which could command the confidence of the House of Commons.

Brown’s position might be more or less acceptable in law, and in accordance with existing convention, but is it right?  Is it legitimate in a democracy?  Cameron and Clegg did not think so.  They argued that the Tories, having won the most seats and the most votes, should have the first go at forming a new Government.  No one expressed it in these terms at the time, but in fact we were witnessing two concepts of legitimacy jostling for supremacy.  After a few days it became clear that “democratic mandate” trumped “existing convention”.

Perhaps, as a result of this coalition deal, a new constitutional convention has been created.  Despite what the Cabinet Manual might say, does the unwritten Constitution now privilege the leader of the party which won the most seats?  Given the malleable and opaque nature of the British system, nobody really knows.

A new “Appointment and Tenure of Her Majesty’s Government Act”, specifying a formal process for the election of a Prime Minister by a vote of the House of Commons, would provide both clarity and legitimacy.  We do not have to go very far to find good workable models to copy. In Sweden, for example, a candidate for Prime Minister is nominated by the Speaker and takes office unless an absolute majority of the Riksdag members vote against the nomination.  A dissolution and second election is held if, and only if, four attempts at the formation of a Government fail.  Since the present Constitution can into effect in 1974, no second election has taken place, and balanced Parliaments have usually resulted in the swift formation of a stable and secure minority Government.

In Ireland, the Taoiseach (Prime Minister) is nominated by a resolution of the Dáil.  The parties make nominations (and sometimes counter-nominations) until a candidate backed by a relative majority is chosen.  Since the late 1980s, this system has tended to encourage the formation of stable majority coalitions.

Whether we should adopt the  exact mechanisms of Sweden, Ireland, or any other European democracy, is beside the point.  What matters is that we recognise the inadequacy of old British conventional arrangements to deal with modern, multi-party politics and start to learn from others.

The new Tory-led coalition should have the sense to admit this.  It is already pledged to a package of constitutional reforms which, by British standards seems fairly ambitious: a referendum on a new voting system for the Commons, an elected upper chamber chosen by proportional representation, fixed-term Parliaments, and new solution to the “English Question”.

That the heirs of a political tradition which was formed to protect the privileges of Crown, the aristocracy and the established Church should countenance such changes testifies to the bargaining skill of the Liberal Democrats.  More profoundly, it reveals the extent to which reformers, slowly but surely, are beginning to win the constitutional debate in Britain.  The old argument (shared by many on the left, as well as the right), that the existing arrangements serve the country well by providing “strong, stable government” is gradually being eroded by concerns over the need for moderation, restraint, fair representation, transparency  and localism.

Constitutional reform, long the preserve of sandal-wearers, tofu-eaters and bespectacled cranks,  has suddenly become mainstream. Politicians of all parties, media pundits, journalists, and academics, are now having to navigate their way through significant reforms which a few months ago they were deriding or ignoring.

Yet this is precisely where the current crop of “constitutional experts” is letting the country down.  Most of these people, often intrinsically conservative in their approach to the hallowed traditions of the British system, are ill-prepared to deal with the issues arising from such a rapid shift in the reform agenda.  They are well-versed on what the Duke of Wellington did in 1830, less aware of the relative merits of workable alternatives.  If we are to achieve salutatory reforms, and avoid mistakes, we need people who can advise on what is best for the future, not what happened in the past. Before embarking on serious constitutional reform, our political class would do well to acquire a broader and more comparative constitutional education.

The misleading and misinformed debate surrounding fixed term Parliaments is a case in point.  The new coalition has decided to introduce fixed terms for the House of Commons, subject to a provision which would enable the Commons to dissolve itself by means of a resolution passed by two-thirds of its members. Some initial reactions from both left and right described it as an assault on democracy which would enable the coalition to cling on to power – revealing their inability to distinguish between a vote of no-confidence and a dissolution of Parliament.

It is quite understandable that there should be confusion.  Under the old rules a vote of no-confidence was assumed to lead automatically to a dissolution; the notion that the resignation of the Government following a vote of no-confidence might lead to another Government being chosen, without an intervening general election, was absent from the two-party party system.  However, a good look around the rest of Europe would have provided plenty of examples of countries in which the Prime Minister does not have an automatic right to dissolve Parliament, and in which a change of Government between elections can be a normal, even healthy, occurrence.

If Cameron is sincere in his desire to create a “new politics”, then our constitutional rules must change, and our ingrained assumptions must change with them.  It might not be as hard as it looks.  Scotland has already made this adjustment, and is better off for it.  The Scotland Act of 1998 did more than just establish a devolved Parliament for the management of Scotland’s internal affairs: it created a different type of Parliament, a Parliament characterised by, and designed for, multi-party politics.  A new electoral system was just one part of this package: fixed term Parliaments (for four years, and capable of being dissolved by a two-thirds majority) and the formal election of the First Minister by a parliamentary vote were just as vital to the success of “new politics”.

Of course any such change at the UK-level will be resisted.  There any many on the left and right wings of politics who, for reasons of principle or advantage remain wedded to the old assumptions of two party politics.  A tight fiscal environment and a period of austerity will only heighten the climate of fear which demands “strong government”.

This is where political scientists, commentators, and a new generation of comparative-minded constitutional experts, must step into the breach and help both politicians and the general public to make wise choices.  They have a duty to expose old myths and call bluff on the oft-repeated lies, so as to coax the UK out of its period of constitutional complacency and prepare the country as painlessly as possible for the reality of multi-party democratic politics.  A good start would be to reveal the fact that the Greek electoral system is grossly disproportional, and that Greece has a tradition of single-party majority governments, while thriving little Denmark has had proportional representation and minority coalitions for almost a century.  In the lead-up to the referendum on a change to the Westminster voting system, that fact alone should give us pause for thought.

One Response to Constitutional Design for Coalition Government

  1. Kathie says:

    Declaration of War is a Royal Prerogative and the Government only needs to seek the Queen’s signature to issue a Declaration of War.However, in the last half-century this provagetire has become increasingly under the control of Parliament, and it is not conceivable that a future government could go to war without subjecting the decision to a vote of the House of Commons.The decision to attack Iraq in 2003 was subjected to two major debates in the Commons. While their decision would not be de jure binding, in reality, no government would be capable of surviving without the support of the Commons and would be required to resign.So while officially there is no requirement, in reality, it has become a requirement.I am, moreover, opposed to suggestions that Declarations of War powers of Parliament should be codified into an Act the danger here is that the process would become destabilised and ossified. The definition of Declaration of War’ can so easily be too strictly narrowed, allowing governments freedom of action to outmaneouvre Parliament.This is the case in the United States, which does codify Declaration of War powers, and half of the occasions the United States has gone to war in the last half-century have not been subjected to Congress.If we keep them uncodified, the House of Commons has freedom of action to assert itself with essentially limitless powers over the Governments’ movements.