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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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 Queen at 90: the changing role of the monarchy, and future challenges

robert_hazell (1)bob-morris

To mark the celebrations of the Queen’s 90th birthday the Constitution Unit has published a new report that discusses the formal powers of the monarchy, and its wider role and functions. The report concludes by looking ahead to what further changes can be expected in the coming decades. It is summarised here by its authors, Robert Hazell and Bob Morris.

This week the Constitution Unit has published a report to mark the celebrations for the Queen’s 90th birthday, which discusses the formal powers of the monarchy, and its wider role and functions. The report also helps to set the scene for two new projects on the monarchy: the first, led by Bob Morris, is on the next accession and coronation, and the second, led by Robert Hazell, is to be a comparative study of the other monarchies of western Europe.

The changing role of the monarchy

0806161The report records how much the constitutional powers of the monarch have changed during the Queen’s reign, and her lifetime. All the important prerogative powers remaining in the hands of the monarch have been removed or severely restricted. The most important of the personal prerogatives are the power to appoint the Prime Minister; to summon and dissolve parliament; and to give royal assent to bills. We found that in exercising each of these powers, the monarch no longer has any effective discretion:

  • The constitutional conventions about the appointment of the Prime Minister have been codified in the Cabinet Manual, which explains that it is for the parties in parliament to determine who is best placed to command the confidence of the House of Commons, and communicate that clearly to the sovereign.
  • The prerogative power of dissolution was abolished by the Fixed-term Parliaments Act 2011. Parliament is now dissolved automatically after five years, or earlier if two thirds of MPs vote for an early election, or the government loses a no confidence motion. The power for the Prime Minister to ask the Queen for an early election has gone.
  • Royal assent to a bill has not been refused since 1707. It would only be withheld now (as then) on the advice of ministers.  That might happen with a minority government which could not otherwise prevent the passage of legislation against its wishes.

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The Queen’s Sorpasso

bob-morris

9 September 2015 marks the day Elizabeth II becomes the UK’s longest reigning monarch. Bob Morris takes this milestone as an opportunity to reflect on the evolution of the monarchy in relation to the constitution in recent years.

Today Queen Elizabeth II’s term exceeds Victoria’s and she becomes the nation’s longest reigning monarch. The institution she heads is not subject to any current serious challenge. Indeed, it is now probably as popular as it has ever been.

Milestones like this prompt reflection and the following attempts to consider what the present reign tells us about the monarchy and the constitution.

Resisting republicanism

To state the obvious first, the monarchy has survived. That should be regarded as an achievement in itself and not assumed to be a constitutional given. The very concept of monarchy is hardly attuned to the spirit of the times – increasingly egalitarian, democratic, undeferential, worldly, multicultural, secular. Some maintain that monarchy represents a vanished feudal worldview of fixed hierarchy, deference, social immobility and religious uniformity.

Despite these claims there is, apart from small sections of the chattering classes, no serious pressure to abolish the monarchy and replace it with a republic. With the possible exception of Australia, this appears to be the position too in the other former ‘settler’ dominions of Canada and New Zealand. Nor does a concerted move against the monarchy seem likely in the twelve other Commonwealth ‘realms’ of which the Queen is head of state. Polling support in the UK for a republic has only ever once – and in evanescent special conditions – just exceeded 20 per cent. Republicanism has yet to establish any real political traction.

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