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

The Lords Leader and Cabinet controversies

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The Prime Minister has angered peers by appointing Baroness Stowell as Leader of the House of Lords without appointing her to the Cabinet. In a scathing debate last Monday David Cameron was criticised for diminishing the status of the Lords Leader, and thus the chamber itself. Meg Russell and Robert Hazell highlight that the row, and the proposed solutions, point to wider uncertainties about the size of Cabinet and status of Cabinet ministers.

The current controversy began on 15 July with the Cabinet reshuffle, when the previous Lords Leader (Lord Hill of Oareford) was nominated as Britain’s next EU Commissioner. This vacancy was to be taken by Baroness Stowell. But while Lord Hill had been a Cabinet member, it soon emerged that Baroness Stowell would not be; instead she would join the ranks of ministers merely ‘attending’ Cabinet. Following criticism that a male Lords Leader was being replaced by a female one at a reduced level of pay, the Prime Minister offered to top up her salary to the level of a Cabinet minister from Conservative Party funds. Baroness Stowell showed her mettle by publicly rejecting this offer. On the day after the reshuffle peers had made it clear (from col. 594) that they considered it inappropriate for a minister formally representing the whole House of Lords to be part-paid by one political party.

The most fundamental principle at stake concerns the representation of the House of Lords at Cabinet level. This is the first time the chamber has had no representation among full members of Cabinet. In a quick report issued on 25 July, the Lords Constitution Committee commented that all previous Leaders of the House of Lords have had Cabinet rank. But the nature of the change goes far further. The position of Lords Leader dates only to 1846, when Lord John Russell became Prime Minister in the Commons. Before this Prime Ministers had more commonly been drawn from the Lords. It was also common until the 19th century for a majority of Cabinet members to be peers. This subsequently declined, but Lords representation had always been guaranteed by presence of the Lord Chancellor: a centuries-old post held consistently by a peer until reform in 2005. Hence until nine years ago the Lords effectively had two guaranteed seats in Cabinet. Suddenly it has none.

Continue reading

Former special advisers in Cabinet 1979-2013

As part of our project on special advisers the Constitution Unit has produced a brief research note looking at special advisers who went on to become Cabinet Ministers. This blog post picks out some key findings and offers some thoughts about what the findings tell us about special advisers and wider concern with the professionalisation of politics.

In this project, we are building an evidence base that will provide the most detailed description yet of who special advisers are. We are therefore interested in what special advisers go on to do after their time in government.

Among the many destinations for special advisers later in their careers are the most senior posts in British politics. The Prime Minister and leader of the Opposition were both special advisers and the speed of their ascent to the head of their parties has been noted by Phil Cowley as exceptional in post-war British politics. Both David Cameron and Ed Miliband have experience as Cabinet ministers but that is relatively rare among their fellow special advisers.

As the Unit’s research makes clear, just 16 Cabinet ministers were previously special advisers. To provide some context: Cabinet usually has 22 full members at any time; and there have been over 500 individuals who were special advisers before May 2010. Less than 5% of special advisers go on to become Cabinet ministers. This suggests that the widespread perception of special advisers as simply politicians in training is mistaken.

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British Cabinets are still largely made up of people who have not served as special advisers to Ministers. The Labour government more than doubled the number of special advisers in post at any time, and it is associated with a handful of high profile special advisers turned Ministers. Under Gordon Brown,four former special advisers were brought into the Cabinet. From 2007-2010, former special advisers made up nearly one third of the Cabinet: the highest ever proportion in British political history, though this seems low for the supposed age of the professional politician Whether such levels will be reached or surpassed again is a matter for speculation.

Lord Adonis is on record as praising the experience of being a special adviser as an excellent apprenticeship for future Ministers. He says he benefitted from it. Nowhere else does one get the opportunity to experience life at the top of government as a political actor, learning how Whitehall responds to your requests. Nowhere else can one see the difficulties, pitfalls and routes to success for a Cabinet Minister so closely. Like all apprenticeships, taking this experience on board and putting it into practice when your turn comes round can surely aid performance.

The fact that only a minority of Cabinet ministers were previously special advisers serves to remind us that there is no one route to the highest offices in government. That will come as a relief to critics concerned about the professionalisation of politics and as a disappointment to Adonis and his ilk. In relation to the special advisers project, this information helps us to think clearly about the sort of skills, experience and other benefits that special advisers receive from their job. How much of the success of Cameron, Miliband et al., is due to the skills and political networks they developed during their time as a special adviser?

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The research note contains more detailed information than this blog post and we encourage you to download it here.

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