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

Comparing European monarchies: a conference first

sketch.1541418351959com-google-chrome-j5urj9IMG_1120.jpgIn early March the Constitution Unit convened a conference of 25 leading experts on the monarchies in Europe. It had been two years in preparation, and was the first of its kind: monarchy is not a fashionable subject in academia. The conference was organised by Robert Hazell and Dr Bob Morris, the Unit’s longstanding expert on Church and State, together with their research volunteer Olivia Hepsworth. Here they explain the background, and some of the main findings from the conference.

Monarchy as an institution does not get much academic attention. This is surprising when one considers that one third of the population of the EU live in states which are monarchies. These include some of the most advanced democracies in the world, countries like Denmark, Norway, Sweden and the Netherlands. And far from being regarded as an anachronism, monarchy in these countries enjoys popularity ratings which politicians would die for. So there is a conundrum worth exploring: is the survival of monarchy in northern Europe the product of historical accident or constitutional inertia, or does it add something to the institutions of representative democracy? And if so, what is its added value? Continue reading

The Constitution Unit blog in 2018: a year in review

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2018 has been an interesting year for the UK constitution, its institutions and those involved in studying or working within them. As the year draws to a close, blog editor Dave Busfield-Birch offers a roundup of the most popular blogs of the year, as well as a look at the reach of the blog through the lens of its readership statistics. 

Obviously, Brexit has made this a very interesting time to work in political science, and the blog has benefited both in terms of increased general interest as a result, but also because there are niche topics being discussed in public now that would have generated little interest in other years. Few, for example, would have predicted in May 2016 that whether or not a motion in the House of Commons was amendable would become a hot political topic.

Below are our most popular blogs from the past year, as well as two personal selections from me, at the end of my first twelve months as blog editor.

Editor’s pick

Gendered Vulnerability’ and representation in United States politics by Jeffrey Lazarus and Amy Steigerwalt.

This was obviously a tough decision, but if you were to ask me for my favourite post of the year, this would be my instinctive choice. Jeffrey Lazarus and Amy Steigerwalt discuss their new book, Gendered Vulnerability: How Women Work Harder to Stay in Office, which argues that women’s perception of a more difficult electoral landscape leads them to adopt distinct, and more constituent-oriented, legislative strategies than their male counterparts. It is a fascinating insight into the challenges faced by women in running for, securing and retaining office. A similar blog on the UK experience, entitled Strategies for Success, was written by Leah Culhane in November. Continue reading

Pre-appointment scrutiny hearings

robert-hazell-350x350In September the Commons Public Administration and Constitutional Affairs Committee published their report into Pre-Appointment Scrutiny Hearings. Robert Hazell gave evidence to the committee’s inquiry on the subject; here he discusses the report’s conclusions, and describes the events that led to its being undertaken, including two Constitution Unit studies that evaluated the effectiveness of such scrutiny.  

The recently published report of the Commons Public Administration and Constitutional Affairs Committee (PACAC) was the product of an inquiry undertaken at the request of the Commons Liaison Committee, because of growing concerns amongst Select Committee chairs that pre-appointment scrutiny hearings were a charade, especially when the government ignored committee recommendations.  The Liaison Committee and PACAC both heard evidence from the former Constitution Unit Director, Professor Robert Hazell, who explained that pre-appointment hearings were more effective than MPs recognised, and suggested ways in which they could be made more effective still.

Pre-appointment scrutiny hearings were introduced by Gordon Brown, when he became Prime Minister in July 2007.  In his Green Paper The Governance of Britain he proposed:

… that the Government nominee for key positions … should be subject to a pre-appointment hearing with the relevant select committee. The hearing would be non-binding, but in the light of the report from the committee, Ministers would decide whether to proceed.  The hearings would cover issues such as the candidate’s suitability for the role, his or her key priorities, and the process used in the selection.

The Cabinet Office and the Liaison Committee subsequently agreed a list of just over 50 key positions which would be subject to the new procedure. Ten years later, by the end of the 2015-17 Parliament, there had been almost 100 scrutiny hearings, involving almost every single departmental Select Committee. The Constitution Unit conducted an early evaluation of the first 20 hearings in 2009-10, and a second study in 2016-17, looking at a further 70 hearings. Continue reading

Planning for the next Accession and Coronation

 

robert.hazell.350x350com.google.Chrome.j5urj9Robert Hazell and Bob Morris have been examining the accession and coronation oaths the Queen’s successor will have to take once her reign comes to an end. Their research on the subject has led to two reports, both of which were published today. In this blogpost, they discuss their conclusions and call for both oaths to be rewritten to reflect a country that has changed significantly since they were last used.

The Constitution Unit has published two reports that look forward to the accession and coronation of the next monarch. This might be thought premature. But because so much has to be decided quickly, within 24 hours of the Queen’s death, it is important to spend time now considering the issues that will arise, before they have to be dealt with in the rush of a new reign. There will be no shortage of critics ready to snipe at the new monarch and their government if anything goes wrong; the more things can be thought through in advance, the better.

Our first report – Swearing in the new King: the Accession Declaration and Coronation Oathsis the product of a study conducted jointly by both of us. The report’s main findings and conclusions are:

  • On accession the new sovereign has to make three statutory oaths: the Scottish oath, to uphold the Presbyterian Church of Scotland; the Accession Declaration oath, to be a true and faithful Protestant; and the coronation oath, which includes promising to uphold the rights and privileges of the Church of England.
  • These oaths date originally from 1688-1707, when Catholic Europe was seen as an existential threat. In our more secular and pluralist society, the oaths need to be revised and updated; or dropped altogether.
  • Because the oaths are statutory, any significant revision would require fresh legislation; as would their repeal. To be in time for the next accession, legislation would need to be passed during the present reign.
  • Legislation could adapt each oath to its context. In a radical reformulation, the Scottish oath could become an oath about the Union; the Accession Declaration, traditionally made before parliament, could become an oath to uphold the constitution and our laws; and the coronation oath, in a ceremony watched by millions, could be an oath made to the people.
  • Our report offers three different reformulations of each oath, depending on how radical the government wishes to be. It may not be easy to reach consensus with the established churches, other faith groups, and civil society; ultimately the government has to decide.
  • If there is not the political will to legislate, the government should consider preparing a statement to give to parliament on accession explaining the historical reasons for the oaths, and how they are to be understood in modern times; with an accompanying briefing for the media.

Continue reading

The marriage of Prince Harry and Meghan Markle: how will it impact the monarchy?

 

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On Saturday, the world turned on their televisions to watch the marriage ceremony of Prince Harry and Meghan Markle, who are now the Duke and Duchess of Sussex. Bob Morris offers his views on what the marriage could mean for the monarchy. This is the first in a small series of blogs about some constitutional aspects of the Monarchy.  The next is to be published on Wednesday 23 May and will complement two Unit reports on the coronation and accession oaths taken by British monarchs. 

‘A family on the throne … brings down the pride of sovereignty to the level of petty life… A princely marriage is the brilliant edition of a universal fact, and as such, it rivets mankind.’ [Bagehot, 1867]

Everyone will wish the couple well in their life together. Their wedding will have been watched by millions and enhanced the sense of continuity that the British monarchy can convey to an increasingly diverse population. Abroad it will equally delight and intrigue – how is it that a modern state can still indulge such celebrations? Continue reading

Constitution Unit publishes new study on non-executive directors in Whitehall

 

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In 2017, the Constitution Unit conducted the first-ever study of the work of non-executive directors (NEDs) within Whitehall. In this blog post, project leader Robert Hazell and Lucas Chebib, one of the project’s research volunteers, discuss the methodology and findings of the report. 

The Constitution Unit has just completed the first major study of non-executive board members in Whitehall (commonly known as non-executive directors, or NEDs). The report concluded that non-executives are high calibre, committed people, whose expertise is greatly valued by the civil service. However, NEDs themselves often said they find the role frustrating, and feel they could be much more effective if the system only allowed.

The study was carried out over 18 months by four former senior civil servants, with assistance from five research volunteers. The team compiled a detailed database of all NEDs; organised a survey; conducted almost 70 interviews; and tested their findings in private briefings and seminars. The full report is published here; what follows is a summary of the main points. Continue reading