Tag Archives: lascelles principles

What role should the monarch have in a constitutional crisis?

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Robert Saunders argues that the UK cannot rely on a ceremonial monarchy that seeks to remain apart from politics to protect the constitution from attack in times of crisis. For that, he concludes that other instruments will be needed, without which both monarchy and the constitution will suffer. This post is based on material from the Unit’s new report, The British Monarchy, co-published yesterday by the Unit and the UK in a Changing Europe.

For much of British history, it was hard to imagine a constitutional crisis without the monarch at its core. From the barons at Runnymede imposing Magna Carta on King John to the expulsion of James II in 1688, the English (and, later, British) constitution was forged in the collision between Crown and parliament. As late as the nineteenth century, suspicion of royal power pulsed through progressive politics. Victorians may have revered ‘Her Little Majesty’, but they also celebrated a ‘Glorious Revolution’ against royal tyranny and erected a statue of Oliver Cromwell outside Westminster.

With the decline of constitutional politics in the twentieth century, the political functions of the Crown slipped from public debate. Yet recent controversies have redirected attention to the role of the monarch at times of constitutional crisis. More specifically, they have reopened a question that deserves greater public discussion: who wields the historic powers of the Crown once the monarch is no longer politically active? Should there be any limit on their use by a Prime Minister?

An emergency brake

Some of the highest powers of the British state still technically reside with the Crown, including the right to declare war, conclude treaties and suspend parliament. By convention, those powers are exercised ‘on the advice of the Prime Minister’. But they do not belong to the Prime Minister, and might, in theory, be withheld.

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What Happens if Boris Johnson loses the confidence of his Cabinet, or his MPs?

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Boris Johnson’s time in Downing Street appears to be in its final days, but how it will end remains unclear. Robert Hazell examines the possibilities. How long will a leadership election take? Could there be a caretaker Prime Minister? What happens if Johnson tries to call a snap general election?

If Boris Johnson loses a confidence vote among Conservative MPs, he is not able to stand again. Any other Conservative MP can then stand for the party leadership. How long it will take for the party to elect a new leader will depend on the number of candidates standing, and whether the vote goes to a second stage ballot of all party members.  Party rules prescribe that Conservative MPs vote initially in a series of ballots to select two candidates, who then go forward to a postal ballot of all party members for the final decision. In 2005 it took two months for David Cameron to be elected leader, defeating David Davis in the postal ballot. In 2019 it took six and a half weeks for Boris Johnson to be elected, defeating Jeremy Hunt. It therefore seems unlikely that we will know who is the new Conservative leader (and Prime Minister) until September. But when Cameron announced his resignation in June 2016, it took just 17 days for Theresa May to emerge as the new leader, because Andrea Leadsom stood down as the second candidate in the postal ballot.

Time is being finally called on Boris Johnson’s premiership.  The initial trickle of ministerial resignations has become a steady stream; a delegation of Cabinet ministers has reportedly called on him to resign; if he doesn’t take the hint, the 1922 Committee seems likely to hold an early second confidence vote in his leadership.   But what will happen if he does resign, or if he loses the confidence of a majority of Conservative MPs?  How long might it take for the Conservative party to elect a new leader, and how will the country be governed in the meantime?

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What happens if Boris Johnson loses a party confidence vote?

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Conservative MPs will vote tonight on whether or not to retain Boris Johnson as party leader and Prime Minister. Robert Hazell explains that if Johnson loses, he might step aside immediately or act as caretaker until his replacement is elected. But he might instead stay on and seek to call a snap election, which could place the Queen in the constitutionally awkward position of having to refuse.

The political pundits predict that Boris Johnson will win tonight’s confidence vote amongst the Conservative parliamentary party. But what will happen if he loses, either this time or in a second vote at some point in the future? How long might it take for the Conservative Party to elect a new leader, and how will the country be governed in the meantime?

Under current Conservative Party rules, if more than 50% of all Conservative MPs (currently 180 MPs) vote in support of Boris Johnson, he can stay as party leader and Prime Minister and no new vote can be triggered for 12 months. But the rules can easily be changed. Theresa May won a confidence vote with a majority of 83 in December 2018, but was subsequently forced to announce a timetable for her departure under the threat of a rule change and new vote. She had been under pressure to say that she would go, and finally went after a disastrous European Parliament election result for the Tories in May 2019. Boris Johnson may similarly find that he survives the initial confidence vote, but his long-term position is not secure.

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The House of Lords amendment to the Dissolution and Calling of Parliament Bill returns appropriate power to MPs: they should accept it

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The House of Lords has amended the government’s Dissolution and Calling of Parliament Bill to require House of Commons approval for early general elections. Tom Fleming and Meg Russell explore what MPs should consider when the bill returns to the Commons. They argue that the Lords amendment deserves support, as it provides an important limit on Prime Ministers’ power to call early elections, and avoids drawing either the monarch or the courts into political controversy.

Background

The Dissolution and Calling of Parliament Bill seeks to change how early general elections are called in the UK. Specifically, it aims to restore the Prime Minister’s control of election timing, by repealing the Fixed-term Parliaments Act 2011 (FTPA).

Before 2011, general elections were required at least every five years. However, the Prime Minister could ask the monarch to dissolve parliament during that period, resulting in an earlier election. The FTPA removed this personalised power, and instead handed control to the House of Commons. Under its provisions, early elections would occur only if two-thirds of all MPs voted to support one, or if the Commons expressed ‘no confidence’ in the government and no government could regain confidence within two weeks. Subsequently, in 2019, the two-thirds majority was shown to be unenforceable, when Boris Johnson presented the Early Parliamentary General Election Bill. This temporarily overrode the FTPA requirement in order to stage the December general election, and both the Commons and the Lords supported it.

The government is now seeking to permanently reverse the FTPA with the Dissolution and Calling of Parliament Bill. This bill passed through its Commons committee and remaining stages in little over two hours last autumn, with limited opportunity for detailed consideration, and was approved without amendment. However, it has since faced more extended scrutiny in the House of Lords.

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The Dissolution and Calling of Parliament Bill: why the House of Commons should retain control over dissolution

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Next week MPs debate the Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act (FTPA) and revive the former prerogative power of dissolution. Meg Russell, Gavin Phillipson and Petra Schleiter, all of whom gave evidence to the parliamentary committees considering FTPA repeal, argue that the government’s bill is flawed. It seeks to keep the courts out of dissolution decisions, but risks drawing them in, and risks politicising the role of the monarch. Removing the House of Commons power over when a general election is held, and returning it to the Prime Minister, would be a retrograde step.

On 13 September, MPs debate the remaining stages of the government’s Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act 2011 (FTPA) and revive the former prerogative power of dissolution. Three parliamentary committees have considered FTPA repeal, to which all of us have submitted evidence. This post summarises key flaws in the government’s approach identified by the committees, and areas where expert evidence suggested solutions to address these flaws.

The post does not argue for retention of the FTPA. Instead it proposes a solution to the problems with the bill that would leave parliament at the heart of decision-making. It makes three key points:

  1. While aiming to exclude the courts from the question of dissolution, the government’s bill instead potentially draws them in.
  2. Placing sole reliance on the monarch as a check generates uncertainty, and risks politicising their role.
  3. The solution to both of these problems is to retain a requirement for the House of Commons to vote on the Prime Minister’s request for a general election by simple majority. Concerns that this could recreate the 2019 Brexit deadlock are groundless.

Our core argument is that maintaining the Commons’ ultimate control over dissolution, while fixing the defects of the 2011 Act, would be a better solution.

The bill seeks to exclude the courts from dissolution but risks drawing them

The bill’s central objective is to return the power to dissolve parliament to the monarch, to be granted on the Prime Minister’s request – that is, to restore the pre-FTPA status quo. Clause 3 (‘Non-justiciability of revived prerogative powers’, commonly referred to as the ‘ouster clause’) seeks to exclude the courts from considering cases relating to dissolution. The courts have never intervened in dissolution decisions (the 2019 Supreme Court case was on prorogation, which is different). But inclusion of the clause suggests that the government perceives some risk of judicial intervention if it attempts to revive the prerogative.

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