Can Boris Johnson ignore parliament and force a no deal Brexit?

meg_russell_2000x2500.jpgprofessor_hazell_2000x2500_1.jpgControversy is swirling over the extent to which Boris Johnson’s government must be bound by parliament, particularly regarding a ‘no deal’ Brexit. Some have even suggested that Johnson could flout a Commons vote of no confidence and pursue this outcome contrary to parliamentary support. Meg Russell and Robert Hazell explore such questions, concluding that both convention and parliamentary logic mean Johnson cannot ultimately force a ‘no deal’. But to prevent this MPs must be organised and determined.

There has been much recent controversy about whether Boris Johnson’s new government can press ahead with a ‘no deal’ Brexit against the express wishes of the House of Commons. This was kicked off in part by a front-page story in Tuesday’s Times headed ‘Johnson to defy any vote of no confidence’ – suggesting that even if MPs went so far as to withdraw their support from the government, the Prime Minister could stay on and force a ‘no deal’ Brexit, perhaps in the middle of a general election campaign. Various commentators have subsequently expressed their views. Many questions raised are close to those that we addressed in an earlier post on this blog reflecting on constitutional questions surrounding the (then still awaited) appointment of the new Prime Minister. Here we return to some of these questions, and our conclusions are twofold. First, despite disparate commentators’ voices, there is a high degree of agreement on the key issues. Second, the essential answer to the question posed in our title is ‘no’. But this depends on strong political will and organisation by the forces in parliament opposed to ‘no deal’.

The options available to MPs

Much energy has been spent in recent months, including prior to the Johnson premiership, reflecting on what MPs’ options are if they want to block a ‘no deal’ Brexit. The general view – for example from the Institute for Government, and from Jack Simson Caird on this blog – is that such options are limited, but do exist. MPs’ continued determination to prevent a ‘no deal’ outcome was demonstrated by the heavy defeat inflicted on Theresa May’s government over the Northern Ireland (Executive Formation) Bill – which in effect blocked the threat of an autumn prorogation. On a previous occasion, ‘no deal’ was defeated by 400 votes to 160. Now, following the departure of many ministers from the government, the forces against ‘no deal’ on the Conservative backbenches are even stronger.

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Who should pick party leaders: MPs, members or a wider public?

The Conservatives and Liberal Democrats are currently in the midst of party leadership campaigns that could change the country’s political course. The winner of the former will likely succeed Theresa May as Prime Minister, whilst the next Lib Dem leader could lend a crucial number of votes to the largest minority party in the event of a hung parliament. On 17 June the Constitution Unit hosted four experts in political party processes to discuss the question, ‘Who should pick party leaders: MPs, members or a wider public?’. Lorenzo Leoni summarises the speakers’ contributions.

The question of how parties elect their leaders has perhaps never been so pertinent to the wider political process. For the first time, the decision of who becomes the country’s next Prime Minister looks likely to be decided as a consequence of a party membership choosing their party leader, without the intervening event of a general election. The implications of this (and the growing influence of memberships in party leadership elections more generally) for our system of representative democracy have perhaps not been sufficiently articulated before now. This well timed seminar sought to address some of these issues by bringing together four party experts to help make sense of leadership elections:  Tim Bale, Professor of Politics, Queen Mary University of London; Mark Pack, editor of Liberal Democrat Newswire and former Head of Innovations at the Liberal Democrats; Jess Garland, Director of Policy and Research at the Electoral Reform Society and Paul Webb, Professor of Politics at the Sussex European Institute.

Tim Bale, Professor of Politics, Queen Mary University of London

Tim Bale opened the evening with what was perhaps the most timely analysis: that of how the Conservative Party chooses its leader. Unlike members of other parties, they have no direct influence on policy, so leadership elections are one of the only ways in which they can influence the party’s direction. Beginning with a brief pen-portrait of the party, he illustrated how the 160,000 or so members of the party are unrepresentative of the population as a whole: demographically they are middle class, over 50, white, and geographically concentrated in the South; ideologically they generally identify as either ‘fairly or very right-wing’.

Bale was sanguine about the fact that a small group of people are responsible for electing not only their party leader but the country’s Prime Minister. Whilst divergent from the wider population, Bale noted that Conservative members are not too dissimilar from the larger group of people who vote for the party at a general election: they are not a ‘breed apart’ from those who support the party come polling day. He also sought to remind the audience that the UK is a democracy that relies on party strength within the House of Commons to determine who should be Prime Minister. In that context, he argued, allowing the party to select their own leader (and therefore the Prime Minister) was not automatically a cause for concern.  

Bale argued that it is imperative that parties remain organisations of civil society rather than drifting into a position where they are over-regulated and closely entwined with the apparatus of the state. It is crucial they have agency to do as they wish and, as the ‘movers and shakers’ in our system, if the party commands a majority in parliament it is quite natural that their leader should also become Prime Minister.  Continue reading

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 next PM’s territorial challenges

jack_sheldon.1The next stages of Brexit are now set to happen under a new Prime Minister. The chosen candidate will have to work with governments in Wales and Scotland that are openly critical. Northern Ireland may be without a government and the English regions may lack a unified voice, but neither can be taken for granted, especially as the new PM will rely on the DUP for confidence and supply. Leaving the European Union therefore cannot be separated from the challenges of maintaining the domestic union, as Jack Sheldon explains.

Following the announcement of Theresa May’s imminent resignation, the long-anticipated contest within the Conservative Party to succeed her has begun.

The campaign will inevitably be dominated by Brexit. But events over the past three years have shown that the future of relations with the EU cannot easily be separated from the future of the domestic Union. The candidates will thus need to give careful thought to how they will approach the major statecraft challenges presented by territorial politics across the UK if they become Prime Minister.

Renegotiating the Northern Ireland backstop will be popular with Conservative MPs – but a new Prime Minister might soon face the same dilemma as Theresa May

The Northern Ireland ‘backstop’ has been the main driver of opposition to the Withdrawal Agreement within the parliamentary Conservative Party and their confidence-and-supply partners the DUP. Consequently, there are strong short-term incentives for leadership contenders to commit to renegotiating it, in the hope that it might yet be possible to get a deal that doesn’t cut across Brexiteer red lines on the Single Market and customs union through the House of Commons. Pledges to this effect have already been made by Jeremy HuntBoris JohnsonEsther McVey and Dominic Raab.

In reality, substantive changes to the backstop will be extremely difficult to deliver. It remains the position of the EU27 and the Irish government that the Withdrawal Agreement will not be reopened.  Keeping an open Irish border has become highly salient in Ireland and the EU, and the new Prime Minister will need to appreciate that this means there is next to no chance that they will be open to trading the guarantees provided by the backstop for the loosely-defined ‘alternative arrangements’ envisaged by many Conservative MPs. The same dilemma Theresa May faced might thus soon confront her successor – whether, as an avowed unionist, to recoil from a no-deal scenario that would undoubtedly have disruptive effects at the Irish border and strengthen the case for an Irish border poll, or whether the delivery of Brexit trumps everything else.

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