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By Ned Simons - 14th January 2011
A panel of academics has questioned the inclusion of Nick Clegg's views on who has the right to govern in the recently published Cabinet Manual, which many see as the first step towards a written constitution.
Published in mid-December, the draft version of the Cabinet Manual sets out where power lies in Britain and for the first time brings together existing constitutional precedent and conventions.
While some have argued it is merely an operating book for the civil service and ministers, several MPs have warned it has far greater reach and have questioned the legitimacy of the document produced by the Cabinet Office as it has not been approved by Parliament.
A footnote on page 48 of the manual notes that: "In 2010, the leader of the Liberal Democrat Party expressed a view that 'whichever party has won the most votes and the most seats, if not an absolute majority, has the first right to seek to govern, either on its own or by reaching out to other parties'".
It was this principle that Nick Clegg claims informed his decision to open negotiations with the Conservative Party about forming a coalition before contacting Labour.
Speaking during a session of political and constitutional reform committee yesterday, Labour MP Tristram Hunt said the inclusion of the quote from the now deputy prime minister appeared to challenge the existing convention on who should form a government.
"What does that footnote mean?" Hunt asked. "It's very presence seems to indicate a pushing of an agenda".
Clegg chaired the Cabinet committee that endorsed the document in draft form and constitutional expert Lord Hennessy said he had a "suspicion" that he "wanted his view to come in".
Giving evidence to the committee he said: "That was one of the things that slightly bothered me…that bit of 'Cleggery' is very interesting as a footnote, it rather stands out. Maybe he is proud of it".
While professor Robert Hazell of University College London's Constitution Unit said the line should be "struck out".
"It's not a constitutional principle," he told MPs. "The constitutional principle in any newly elected parliament is that that person shall be appointed as prime minister who can command confidence of the House of Commons."
"And as we saw in May of last year its up to political parties to negotiate to try to work out who can command confidence in new House.
"There are no set rules, and I don’t think there can be or should be, about how those negotiations should be initiated or by whom.
"There could be parliaments in which a majority, or a working government which can command confidence, might be established between the second and third largest parties."
He added: "And so I don’t think that footnote should be part of the manual".
Oxford professor Iain McLean said the footnote was "distracting" and was "simply statement of a political party leader at a particular time who we may say had an interest in making that particular statement".
At present Britain does not have a written constitution like the United States, relying instead on a set of conventions and precedent described yesterday by Lord Hennessy as something of a constitutional "magical mystery tour".
But while he acknowledged the manual was a step towards a written constitution he said its importance should not be overblown.
"This is not a 'we hold these truths to be self evident' moment for the UK," he said in reference to the opening lines of the American constitution.
"If anyone opened a document like that they would be offered counselling at the very least wouldn’t they?"
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