Six constitutional questions raised by the election of the new Conservative leader

professor_hazell_2000x2500_1.jpgmeg_russell_2000x2500.jpgIn less than one month, Conservative Party members will elect a new leader from a two-man shortlist. Under normal circumstances, what happens next would be obvious – Theresa May would resign and the winner would be called on by the Queen to form a government and take office as Prime Minister. However, with the Conservatives lacking a parliamentary majority and normal party loyalties skewed by Brexit, the current scenario is far from normal. Robert Hazell and Meg Russell identify six key constitutional questions that the Conservative leadership election raises for the winner, his party, the Palace and parliament.

With the Conservative Party leadership contest in full swing, the expectation is that Britain will soon have a new Prime Minister. But the process has opened up some significant constitutional controversies. This is the first time that party members will potentially directly elect a new Prime Minister, and this innovation is happening at a time not only of minority government, but with the governing party severely divided. Some senior Conservatives have signalled that they might go so far as to vote no confidence in a new leader who sought to deliver a ‘no deal’ Brexit, while some candidates in the race suggested a possibility of proroguing parliament to avoid MPs blocking a ‘no deal’. In this post we address six of the most burning constitutional questions raised by these controversies.

1. Will the new leader of the Conservative Party be appointed Prime Minister?

Not necessarily. The key test is whether the Conservatives’ new leader is able to command the confidence of the House of Commons. This is how it is expressed in the key paragraphs of the Cabinet Manual:

2.8    If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government.

2.9    … In modern times the convention has been that the Sovereign should not be drawn into party politics, and if there is doubt 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 to the Sovereign who is best placed to be able to command the confidence of the House of Commons. As the Crown’s principal adviser this responsibility falls especially on the incumbent Prime Minister …

2.18    Where a Prime Minister chooses to resign from his or her individual position at a time when his or her administration has an overall majority in the House of Commons, it is for the party or parties in government to identify who can be chosen as the successor.

Clearly none of these paragraphs quite covers the present unusual circumstances: Prime Minister Theresa May is on course to resign as an individual (2.18), rather than on behalf of the government (2.8), but the governing party does not have an overall Commons majority. Two things however are clear in either case. First, that the new Prime Minister must be the person most likely to be able to command the confidence of the House of Commons, and second, that it is the responsibility of the politicians to determine who that person is, in order to protect the Queen from the political fray.

Whether the new Conservative Party leader can command parliamentary confidence is clearly in some doubt given comments from Conservative MPs that they may not be able to support the new government. The government only has a majority of three (including the DUP), so only a very few rebels is enough for it to lose its majority. The parliamentary arithmetic is not necessarily that simple, because some pro-Brexit Labour rebels could conceivably decide to support the government. But the number of Conservative rebels is potentially large enough.

One possible scenario is that a group of Conservative MPs is so concerned about the winning candidate that they declare their withdrawal of support as soon as the result of the leadership contest is known – before the new PM is appointed. This would pose a serious dilemma for the Queen and those advising her, because it would not be clear that the new Conservative leader could command confidence. If the appointment went ahead regardless, the new PM could (as discussed below) face an immediate no confidence vote, and be brought down. So if such a rebel declaration was made, how should the Queen respond?

Potentially, she might invite the new leader to see if he can form a government, as she did with Lord Home in 1963. The uncertainty then was whether senior colleagues, in particular Rab Butler, would be willing to serve. When Home learned that they would, he was able to return to the Palace the next day to be confirmed as Prime Minister. This precedent might allow the Queen to appoint the new leader as Prime Minister to test whether he could command parliamentary confidence. Such a test could involve a formal vote of confidence in the new government; or it could be more informal, through the new PM making a statement about his Brexit strategy, and inviting the House to approve it in a vote. But this approach could generate great uncertainty if the new PM lost a vote of either kind.

It would hence seem preferable, if there were clear resistance from some Conservative MPs, that the Queen should wait for clear evidence that the new leader could command confidence, before making any kind of appointment. Under this scenario Theresa May would not immediately resign, but instead bear responsibility as incumbent PM for facilitating, and possibly leading, a process in parliament to determine who was best placed to command confidence (as envisaged in paragraph 2.9 above). One mechanism to achieve clarity would be for her to move a humble address that the Queen should appoint the new Conservative leader as PM or – failing that – an alternative candidate who could command confidence. This would be equivalent to an investiture vote, of the kind that takes place in other parliaments: in Scotland, for example, the First Minister must first be nominated by the Parliament before being appointed by the Queen (section 46 of the Scotland Act 1998). Following this route would be less risky, as repeated votes could be held without threatening an immediate general election, and an experienced officeholder would remain in place: there can never be a vacuum in the office of PM. Ultimately, if MPs felt that Theresa May was overstaying her welcome, they could move a vote of no confidence in her government.

Of course, if there were no immediate threats that Conservative MPs would support a no confidence vote, Theresa May would by default recommend the new Conservative leader to the Queen for appointment. But this does nonetheless lead to question 2.

Short answer: Not necessarily. If there is serious doubt about the new Prime Minister commanding parliamentary confidence the Queen might make a provisional appointment, conditional on the new PM demonstrating confidence. Alternatively, Theresa May could remain in place and facilitate a process in parliament to demonstrate that the winning candidate – or indeed an alternative candidate – can win a confidence vote, before recommending that person to the Queen.

2. Will there be time for confidence to be tested before the House rises for the summer recess?

On present plans this will be difficult, which is a problem. The House recently agreed a government motion that it should rise on Thursday 25 July and return for the September sittings on 3 September. The deadline for postal votes in the Conservative leadership election is Monday 22 July, with the result expected on Tuesday 23 July. It has been suggested that Theresa May might face her last PMQs on Wednesday 24 July, before resigning as Prime Minister. That would leave just one day for the new Prime Minister to meet the Commons and establish whether he can command its confidence. Should questions about confidence among Conservative MPs precipitate the kind of delay suggested above, parliamentary time for this test would soon run out.

That seems seriously inadequate. Whatever the circumstances, it will take at least a day for the new Prime Minister to appoint a Cabinet, and longer to appoint junior ministers. But the composition of the new government – not just the Prime Minister – will be one of the issues affecting confidence. The expected route to a vote of no confidence would be a formal motion tabled by the Leader of the Opposition, which by convention is guaranteed parliamentary time – usually there is a two-day debate before the vote. If instead the new government wished to positively demonstrate that it could command confidence, it would need time to set out its new Brexit strategy in detail to the House of Commons, before the summer break. A demonstration of MPs’ support for that strategy would clearly be valuable before re-entering negotiations with the EU. Without time for one or another of these processes to take place before parliament disperses for the summer there could be loud claims (however unfounded) that the new PM does not in fact command parliamentary confidence, and that parliament has been silenced.

Hence it seems very likely that the Commons will need to continue sitting longer than currently planned, into the final days of July. Without this MPs will go away very frustrated, and calls for the Commons to be recalled to scrutinise the new Prime Minister’s Brexit strategy will likely be heard almost immediately. The Commons could choose to hold a last-minute vote to change the summer recess, but it would be more sensible to face this reality now.

Short answer: the Commons will probably need to sit beyond 25 July to allow adequate time for confidence to be tested before the summer recess.

3. What if the new Prime Minister loses a confidence motion immediately, in July?

If the government loses a formal confidence motion, the Fixed-term Parliaments Act 2011 (FTPA) provides that there shall be an early general election, unless the House of Commons reaffirms confidence within 14 days. This reaffirmation could follow a change of policy (for example, pledging to abandon ‘no deal’); a change of personnel (by rebalancing the Cabinet); or a change of Prime Minister. The difficulty with the last of these is that the FTPA is silent on how a new Prime Minister who is more likely to command confidence might be appointed: it states only that an early election will not be held if an affirmative motion is passed, ‘that this House has confidence in Her Majesty’s Government’.

In practice there could be frantic negotiations to see if an alternative government could be formed under a different Prime Minister: possibly one who could command cross-party support (in line with paragraph 2.9 of the Cabinet Manual, as quoted above). If MPs can agree on such a figure, they could effectively nominate that person through a motion on a humble address, giving the Queen good reason to appoint the person. The new Prime Minister could then go on to demonstrate confidence through a formal affirmative motion under the FTPA.

If the 14 days expire without an affirmative motion being passed, the polling day for the election is appointed by the Queen by proclamation on the recommendation of the Prime Minister (section 2(7) of the FTPA). It takes at least five weeks to hold a general election (section 3(1)). So if, for example, the no confidence motion were passed in late July, the 14 days would expire in mid-August, allowing the election to be held in mid-late September.

Short answer: if the new PM loses an early confidence motion at the end of July, an alternative government could be formed within 14 days; failing that, a general election would be held in mid to late September.

4. What if the new Prime Minister loses a confidence motion later on, in September or October?

This timing may be more likely. Conservative MPs desperate to go away on holiday may well give the new Prime Minister the benefit of the doubt in July, and prove reluctant to precipitate an early crisis. But if by September it becomes clear that the new PM is heading for an October ‘no deal’ exit, MPs have few procedural devices to prevent that from happening. Some Conservatives have clearly indicated that they would be willing to vote down the government in this case. But the timing would be very tight – which again points to likely requests for a summer recall.

Parliament is currently due to return for a fortnight on 3 September, and then expected to adjourn again for the party conferences until around 9 October. The September sitting would no doubt hear a statement from the new PM about his progress in renegotiating Brexit, and the likelihood of reaching a deal. It could be difficult for MPs to vote down the government so long as a renegotiated deal appears realistic. But if they wait until ‘no deal’ seems the near-certain outcome, a no confidence vote might not occur until after parliament returns in October.

If such a motion were carried, that would trigger a general election unless a new government could be formed, or the incumbent government could reaffirm confidence, within 14 days. The latter might only be achievable by abandoning ‘no deal’ as the fallback option, and agreeing to pursue an extension to the Article 50 period if needed (which might, in turn, require some change in personnel). Of course, any such move would be opposed by the hardline Brexiteers, numbering as many as 50–80 Conservative MPs. Hence the government would need significant cross-party support to survive.

Short answer: if the new PM loses a confidence motion in September or October, he could abandon ‘no deal’ to try to regain confidence; but he would need significant cross-party support to survive. Failing that, unless an alternative government is formed, a general election would follow.

5. If parliament is then dissolved, can the election be held before 31 October? Could MPs run out of time to prevent ‘no deal’?

The more likely outcome of a successful no confidence motion is that it triggers an early election. But the combination of the statutory 14 days required by the FTPA, plus five weeks for the campaign means that an election before 31 October would need to be triggered by the first week of September. If a no confidence vote occurred any later, there would be insufficient time to hold an election before we are due to leave the EU. In other words, a further Article 50 extension would be required in order to avoid a ‘no deal’ exit ahead of the election date. But the Prime Minister might be reluctant to seek such an extension.

If a no confidence vote had been forced specifically in order to prevent ‘no deal’, the view of the House of Commons on that question would be clear, and for the Prime Minister to ignore it would be to frustrate the will of parliament. Furthermore, under the ‘caretaker convention’ an outgoing government, once an election has been called, should not tie the hands of any incoming government. As the Cabinet Manual puts it, ‘governments are expected by convention to observe discretion in initiating any new action of a continuing or long-term character in the period immediately preceding an election’ (paragraph 2.27). Paragraph 2.29 explains that this means deferring major policy decisions. Since the only way to defer ‘no deal’ would be to ask the EU for an extension, convention would demand that the Prime Minister do this – even if he chose to go into the election campaigning for ‘no deal’.

In any normal times, these conventions would offer sufficient reassurance to parliament. However, if MPs feared that conventions could be flouted, they could use the 14 day period to issue clear instructions (ideally through legislation) to the government to request an extension. This implies that at least some breathing space is needed between a no confidence vote and the 31 October deadline.

Short answer: in this case the election is unlikely to be held before November. Convention would require the PM to ask the EU for an extension beyond 31 October, and MPs could vote to reinforce that.

6. Should the Queen agree to prorogue parliament, if asked by the new Prime Minister?

There have been suggestions that the PM might dodge parliamentary attempts to prevent ‘no deal’ by advising the Queen to prorogue parliament. Prorogation brings a parliamentary session to an end, and all outstanding business is lost. Such a suggestion rightly attracted widespread criticism, because of its undemocratic nature, and because it risks dragging the Queen into politics. But if the new PM requests a prorogation, to avoid a no confidence motion, or to close down attempts to prevent ‘no deal’, what should be the response?

The PM can only give advice which is binding on the monarch if he commands the confidence of parliament. If the request for prorogation is to dodge an impending vote of no confidence, then by definition that confidence is not assured. Hence the Queen could reasonably ask the Prime Minister to reconsider, or to withdraw the request. Although there is no recent history of prorogation causing controversy in the UK (but remember Charles I), there are plenty of Commonwealth precedents, described in Anne Twomey’s excellent book The Veiled Sceptre: the Reserve Powers of Heads of State in Westminster Systems.

Prorogation need not be immediate. It requires a meeting of the Privy Council, with the Queen presiding, which takes time to organise. In this period the Commons might pass a motion under the humble address procedure, informing the Queen that they do not wish to be prorogued.

But the most powerful arguments against prorogation are political. Any Prime Minister will need the support of parliament for the conduct of government business. Proroguing parliament against its wishes comes close to political suicide.

Short answer: if it is not clear that the PM commands the confidence of parliament, the Queen could ask the Prime Minister to reconsider, or to withdraw his request. A formal decision could be postponed until a confidence motion had been held.

About the authors

Professor Robert Hazell was the first Director of the Constitution Unit, and closely involved with helping the Cabinet Office draft the Cabinet Manual. He is currently working on a comparative study of European monarchies, due to be published next year.

Professor Meg Russell is Director of the Constitution Unit. She has recently been appointed a Senior Fellow with The UK in a Changing Europe, where her work will focus on the role of parliament in the Brexit process.

The Unit is recruiting a Research Assistant to assist Meg in her work on parliament and Brexit. Applications close on 14 July. Additional details can be found here.