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. Continue reading

Royal Succession rules: view from the Realms

HM Queen Elizabeth IIPost by Anne Twomey, Associate Professor at the University of Sydney Law School

Changes to the rules of succession will be one of the items discussed at the Commonwealth Heads of Government meeting in Perth on 28-30 October.  These changes include removing the priority given to males over females, and removing the disqualification of people from the line of succession if they marry a Catholic.

Not all Commonwealth countries have to agree to such changes, because most are republics.  It is only the fifteen other ‘Realms’, of which Her Majesty is Sovereign, that are potentially affected.  They range in size from Canada and Australia at one extreme to St Kitts and Nevis and Tuvalu at the other.

Westminster no longer has any power to legislate for these countries.  Any changes the UK makes to the laws of succession will not apply to those Realms, unless the local law of the Realm picks up and applies the British law, or simply identifies its Sovereign by reference to whoever is Sovereign of the United Kingdom.  In Tuvalu, for example, Her Majesty is Queen at the request of the people of Tuvalu.  The office of Sovereign extends to her heirs and successors, according to the law of Tuvalu, but in the absence of such a law, the British law of succession applies.   In contrast, in New Zealand, the Act of Settlement has become part of New Zealand law and can only be changed in its application to New Zealand by the New Zealand Parliament.  So unless the New Zealand Parliament changes its law of succession, the old law will continue to apply, regardless of any change made in the United Kingdom.

Matters become more awkward in the federations.  In Australia, whether the federal Parliament has the power to enact a law changing the rules of succession, or whether it requires the cooperation of all the State Parliaments remains debateable.  In Canada, the matter is even more uncertain.  A constitutional amendment in relation to the office of the Queen requires the passage of resolutions by both Houses of the federal Parliament and all the provincial legislatures.  It is unclear whether such a law would amount to a constitutional amendment.  However, if the consent of all the provinces is required, difficulties might arise in getting the consent of Quebec.

The United Kingdom is perfectly entitled to change its laws concerning succession to its throne at any time without needing the consent of any other country.  The ‘convention’ set out in the preamble to the Statute of Westminster 1931, which required the parliamentary consent of certain Dominions, is out-dated and arguably no longer applicable.  However, if the British Government places importance on maintaining a single law of succession across all of the Realms, then this may be more difficult to achieve, given the constitutional difficulties in some of the Realms.  The discussion at CHOGM will be an important first step in this process.

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