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

Losing political office: what next for the Prime Minister?

com.google.Chrome.wa6yx7 (1)Theresa May has formally resigned as Leader of the Conservative Party after almost three years as Prime Minister, a decision that will bring to an end a nine-year period of ministerial office. Before she formally leaves her post, Jane Roberts discusses how losing political office impacts on a person, and what the outgoing Prime Minister might do next.

The experience of losing political office

Spare a thought for Theresa May just now, consigned to an unkind history, yet still required to fulfil her official duties as Prime Minister whilst the jockeying amongst her potential successors takes place in the full glare of the media.

Of course, the transition from the highest political office in the land is never easy. Whatever the accomplishments in prime ministerial office, the end when it comes is almost inevitably a fall from grace. As John Keane has said, democracies specialize in bringing leaders down to earth. Harold Wilson is probably the only exception in the UK to this in recent times. Internationally, the former New Zealand Prime Minister, John Key was, in 2016, one of the very few heads of government to step down at a time of his own choosing, when he still remained popular and likely to win a fourth term in office. Few leaders, Key said, know when it is time to go and he was determined not to be one of them. Rather, he wanted to go whilst at the top and make way for new talent, echoing Thomas Jefferson in 1811 when he wrote that there is ‘a fullness of time when men should go, and not occupy too long the ground to which others have a right to advance.

Tony Blair was able – albeit under considerable pressure from his successor – to plan his own departure, but after a decade at Number 10, cocooned from the everyday realities of life, he had reportedly no idea even of how to book his own travel. But it is not just the practicalities of life that former prime ministers have to adjust to. Far more challenging is the psychological transition from no longer holding sway in office, in charge of the domestic agenda and with considerable influence internationally, hobnobbing with leaders across the globe. One moment, your every word and nuance are the subject of constant, intense interest and scrutiny; the next, you are a political has-been, no-one noticing, much less caring what you think. Simply, you no longer matter; people have already moved on to your possible successor. The long, patient moving up the political greasy pole that may well have involved considerable personal sacrifice comes to a likely sudden, hasty and inglorious end. In democratic terms, political exit is both inevitable and desirable but on a personal level for any prime minister – indeed for most elected politicians – it is a very significant loss. And it hurts badly, even if there is some relief in the mix too.

Yet, public and academic debate tends not to dwell on the experience of politicians leaving office – except perhaps for a brief, almost salacious focus on visible tears. My research, which involved in-depth interviews with former MPs (including former cabinet members but not former PMs) and council leaders, demonstrates that the experience of losing political office is more complicated for individuals and for their partners than many predict. This may be the case both for those former politicians who have been defeated and for those who have stood down, albeit with varying degrees of voluntariness. Continue reading

Rethinking Democracy: three routes to majority government

albert_weale (1)After 65 years of single-party government in the House of Commons, the last three general elections have led to three differently constituted governments: a two-party coalition, a Conservative majority government and a Conservative minority government reliant on a confidence and supply agreement for its parliamentary majority. Albert Weale argues that if a rethinking of British democracy is required, that we must start from first principles and consider how to create ways of institutionalising political negotiation among different groups in a way that embraces an incentive towards encompassing different interests and opinions.

A UK trio

2010 – 2015 – 2017. Three elections; three results; three parliaments varying in their party balance: three types of government. Three types of majority rule.

2010 produced a hung parliament with no one party holding an overall majority of seats in the Commons, leading to a Conservative-Liberal Democrat government, the first UK government formed by a coalition of more than one party since 1945. In 2015 the UK reverted to its familiar type with one party holding a majority of parliamentary seats, and with the Conservatives able to form a single-party government. 2017 produced another hung parliament and the government exhibited yet another form: a minority government dependent on a small party, the Democratic Unionists, for confidence and supply, but without the assurance that it could carry the whole of its programme during its term of office.

These three examples illustrate the different ways in which the principle of majority rule can be interpreted. 2015 exhibits the typical pattern of government formation in the UK: one party gains a majority of seats in parliament on less than a majority of votes in the election, with the Conservatives holding just over 50% of the seats on the basis of 37% of the popular vote. On this view of majority rule, it means government by the party that can secure a majority of seats in the legislature whether or not it has secured a majority of votes in the country. No UK governing government since 1935 has secured more than a plurality of the popular vote. Continue reading

Brexit and the constitution: seven lessons

NGQojaZG_400x400 (1)

The process of exiting the European Union has revealed that the relationship between law and politics was perhaps not as sound as it might once have appeared. Jack Simson Caird believes that we are in the midst of a constitutional moment that has taught us seven key lessons.

Brexit can plausibly be described as a ‘constitutional moment’. The decision to leave the EU will shape the UK constitution over the coming decades. Even if the full extent of the constitutional changes that will flow from Brexit are not yet known, future Prime Ministers will be defined (in part, at least) by their ability to oversee successful constitutional reform. The post-referendum period has revealed a great deal about the relationship between the UK’s political system and its constitutional framework. Those responsible for changing the constitution moving forward will need to learn the lessons from this tumultuous period.

1. Governing without a majority needs a change of approach

One of the principal causes of the current crisis has been the way in which Theresa May’s government approached the task of governing without a majority. In the immediate aftermath of the referendum, members of the government stressed the need to deliver on the referendum result without delay. The overwhelming sentiment was that the government, led by the Prime Minister and her Cabinet, should be left to get on with the task of negotiating a deal: a majoritarian mindset disconnected from the reality of a divided Cabinet and parliament. Instead, the government should have sought to build a majority for its proposed approach to delivering Brexit before it triggered Article 50 (or at the beginning of the 2017 Parliament).

Any future government that wishes to deliver constitutional change without a majority should look to the example of 2010 Coalition government. The coalition agreement struck between the Conservative and Liberal Democrats specified the constitutional changes that the two parties would agree to support. Theresa May’s government should have done the same and at the outset sought support for the substance of its approach for delivering Brexit.

2. Identify processes that can help to build consensus

The domestic process by which Brexit was to be delivered was not given sufficient attention early enough. Constitutional change gives rise to cross-cutting issues deserving of a special form of public and parliamentary scrutiny. In the absence of a rock-solid parliamentary majority, a special process needed to be constructed to deliver the constitutional transformation of the scale required by Brexit. The commitment to construct such a process at an early stage would have sent a positive message to other parties – and to the public – that the government was committed to finding a compromise that commanded wide support.

In the absence of a formal agreement with another party, the government could have sought to construct a bespoke process that might have facilitated cross-party support for delivering Brexit.

In the early stages of the process, suggestions that parliament should have more input in the negotiations were rejected on the basis that the government should not have its hands tied. Rather than treating these suggestions as an opportunity to bring MPs onside, they were treated as threats that could derail the process. Theresa May’s government only resorted to indicative votes and cross-party talks after the negotiations with the EU finished (and her deal or no deal strategy had failed) which did little to inspire the sense that the desire to engage was genuine.

3. Parliament needs to develop new forms of influence

The Article 50 process has demonstrated that parliament is a powerful constitutional actor. Since the Withdrawal Agreement was published in November 2018, the majorities against the Withdrawal Agreement and against a no deal exit shaped the debate. However, the Article 50 process has also shown that parliament’s influence on the substance of treaty negotiations and the legislative process is limited. Over the course of the 2017 parliament, the House of Commons inched its way to more control through innovative uses of parliamentary procedure, such as through business of the House motions and the Humble Address. The problem is that MPs only realised the extent of their power when it was too late. This meant that compromises were put together and agreed in haste. Essentially, backbench MPs made the same mistake as the government by not prioritising their influence over the process at an earlier stage.

4. The values of liberal democracy should be robustly defended

During the Brexit process, parliamentary scrutiny and debate has been characterised by some as anti-democratic. However, one of the central tenets of liberal constitutionalism is that proposals to change the constitution should be subject to scrutiny and debate. Constitutional democracy is in a very difficult place if this scrutiny and debate is not valued and defended. The core of the case for a carefully constructed procedure for constitutional change is that it enhances the democratic legitimacy of the end-product. How can constitutional reformers build the case for properly constructed change, if deliberation itself is undervalued in UK political culture?

The House of Commons and the Civil Service are restricted in their ability to defend their constitutional role by the requirements of impartiality. So, advocates of constitutional democracy need to robustly defend the role that institutions play in empowering citizens through democratic deliberation. No one is suggesting that politicians or institutions should be free from criticism (on the contrary, criticism is critical to their health and development). However, Brexit has highlighted a need for the values that underpin the basic elements of the democratic process to be defended far more vigorously.

5. Reframe the language of constitutional democracy

Prior to the referendum vote, the Vote Leave campaign demonstrated that a constitutional argument could be framed and communicated in a way that could cut through. Restoration of sovereignty (‘take back control’) was central to the Vote Leave campaign narrative. However, in the post-referendum period, the government has struggled to find a way of communicating the message that leaving the EU with a deal would empower ordinary citizens.

Of course, the reality of constitutional change is more complex than the messaging during the referendum campaign conveyed. However, it is clear that the constitutional ambition of the government was limited by its ability to communicate the value of democratic institutions. Implementing Brexit through radical constitutional change (by, for example, devolving power to English regions) would have required innovative ways of communicating this change to voters – and the government did not have this capacity.

6. Bring law and politics closer together

The Brexit process has exposed a fairly dysfunctional relationship between law and politics in Westminster. Parliamentarians have often been called out for misunderstanding some of the legal fundamentals of the Brexit process. The level of understanding of international law and EU law has been particularly problematic (although this perhaps reflects the limited incentives that parliamentarians have so far had to engage with either of these areas of law). At the same time, it is important to recognise that lawyers are not best equipped to engage with politics. As a result, the Brexit process has often been characterised by a frustratingly circular discourse. To improve the quality of debate over constitutional change, we need to bridge the gap between law and politics.

7. We need politicians that want to build a constitutional consensus

It may be that the UK’s constitutional democracy is in such difficulty that it cannot be repaired through piecemeal change. However, a more radical constitutional overhaul (perhaps in the form of a written constitution) will require politicians that are willing to prioritise finding a new constitutional settlement to resolve the post-Brexit divisions. At present, there are very few frontline politicians that prominently advocate constitutional change. It is not a message that seems to garner support.

Professor Jeff King’s inaugural lecture – delivered at University College London in April 2018 – persuasively argued that moving towards a written constitution in the UK would provide a means for citizens to take ownership over the UK’s constitutional democracy. In order to revitalise constitutional democracy in the UK post-Brexit, political leadership will need to harness this insight and communicate it to the public at large.

This article originally appeared in the June issue of Counsel and is reprinted with permission.  

About the author

Dr Jack Simson Caird is Senior Research Fellow in Parliaments and the Rule of Law at the Bingham Centre for the Rule of Law. He tweets as @jasimsoncaird

Continue reading

How did parliament get into this Brexit mess, and how can it get out?

download.001

Some, controversially including the Prime Minister, have accused parliament of failing on Brexit. Last week’s Article 50 extension hands parliament responsibility for solving the crisis. Here, Meg Russell reflects on why parliamentary agreement has thus far been difficult, and what parliament now needs to do.

This week’s Brexit events have been fast moving. Following a series of House of Commons votes on 12–14 March, the Prime Minister travelled to Brussels to negotiate an extension to the Article 50 period. Beforehand she made an extraordinary – and widely criticised – statement to the nation, seeking to lay the blame for the UK’s Brexit impasse at parliament’s door. Following many hours of discussion, the EU27 offered a limited extension: to 22 May if parliament approves the existing Withdrawal Agreement, else to 12 April, before which the UK government should ‘indicate a way forward’ for the EU’s further consideration.

This gives parliament (and specifically the House of Commons) an urgent task of resolving matters, to avoid the UK ‘crashing out’ without a deal in just under three weeks. To date, parliament has been unable to resolve the Brexit dilemma. This post explores why, before turning to what should happen next.

How did we get here?

As explored in a previous post, various factors have combined to make parliament’s Brexit dilemma unique. The most important is the context provided by the June 2016 referendum. By voting for ‘Leave’, the British public issued an instruction to government and parliament, which went against the prior views of most MPs. Politicians pledged to honour the referendum result, but as pointed out by various key actors (including the Commons Public Administration and Constitutional Affairs Committee, chaired by a leading Brexiteer, and the Independent Commission on Referendums), the instruction was far from clear. As we now know, there are many different competing visions of Brexit from which MPs could choose. To complicate matters further, Theresa May’s snap general election of 2017 delivered a hung parliament and minority government, making it far more difficult than usual for parliamentary majorities to form. Continue reading

Should we worry if MPs seize control of the parliamentary agenda?

download.001Ahead of Tuesday’s votes on Brexit, attention has focused on the rights and wrongs of the House of Commons seeking to ‘seize control’. Meg Russell argues that there’s nothing unusual about a democratic parliament controlling its own procedure and business. Indeed, the core principle of parliamentary sovereignty already gives the Commons control by default.

With stalemate over the Prime Minister’s Brexit deal, rejected dramatically by the House of Commons on 15 January by 432 votes to 202, there is increasing talk of parliament ‘seizing control’. On Tuesday, following the Speaker’s controversial decision to allow a vote on Conservative backbencher Dominic Grieve’s amendment speeding up the timetable, MPs will vote on a series of propositions about what should happen next. These include a further proposal by Grieve that the government’s usual control of the agenda should be set aside on specified days to allow MPs to make decisions on Brexit, and a proposal from Labour’s Yvette Cooper that such control be set aside to allow time to debate a private member’s bill demanding that ministers avoid a no deal Brexit by requesting an extension to Article 50.

Consequently, some inside government have expressed concerns that the Commons, with the Speaker’s assistance, is overreaching itself. It has been reported that an internal government document warns of MPs’ moves ‘represent[ing] a clear and present danger to all government business’, and even meaning that ‘the government would lose its ability to govern’. One senior legal figure (whose career was spent inside the government) has argued that changes of this kind could set dangerous precedents for the future, even potentially dragging the monarch into a constitutional crisis (though other legal experts have firmly rebutted such claims).

So are we entering dangerous constitutional territory? What is, after all, so odd about the idea of a democratically-elected chamber gaining greater control over its own time, and its own rules? Continue reading