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

Brexit, devolution and legislative consent: what if the devolution statutes were left unchanged after Brexit?

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In a previous blog post Sionaidh Douglas-Scott wrote about how the consent of the devolved assemblies would be required to remove references to EU law from the devolution legislation in the event of Brexit. Here, she considers what would happen if, fearing the constitutional crisis that may result, the UK government simply left the devolution legislation untouched. For the sake of simplicity and space, this blog restricts discussion to Scotland, although similar issues will pertain to Wales and Northern Ireland.

In a blog post published on this site earlier this week, I considered the requirement for the legislative consent of the Scottish Parliament when the UK parliament seeks to legislate in devolved policy areas, or seeks to vary the legislative competence of the Scottish Parliament or the executive competence of the Scottish government. In the event of Brexit, these circumstances may arise with regard to the need to amend devolution legislation, such as the Scotland Act 1998, in order to remove references to EU law. If such consent is not forthcoming, this could prompt a constitutional crisis. However, suppose then that, desirous to avoid such constitutional consequences, the UK government decided not to propose legislation to amend the devolution statutes, but opted instead to leave them unchanged. What would be the impact of their doing this? Again we take Scotland as the working example.

At first sight, such a hypothesis seems ludicrously unworkable. Such a situation would require Scotland to act in compliance with EU law in any legislation it adopted in Holyrood within the scope of its devolved competences. So there would be a situation obtaining within a post-Brexit UK in which one regime operated for the Westminster parliament (no need to act compliantly with EU law) and a different regime in Holyrood, which according to s. 29(2)(d) of the Scotland Act 1998 would still have to act in compliance with EU law wherever it enacted its own devolved legislation. Although it would be technically possible to require compliance with EU law for Scottish legislation, even if the UK were not a member of the EU and were no longer bound by EU treaties, it would certainly be strange if a treaty that no longer bound the UK was still required under the devolution settlement. There are some precedents for voluntary compliance with treaties by non-contracting parties. For example, the EU in Art 6 TEU declares that ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms’, and the EU is not currently a contracting party to the ECHR (although all members of the EU are themselves contracting parties to the ECHR). Requiring the Scottish Parliament to comply with EU law would no doubt give rise to uncertainty: for example, post Brexit, how would ‘compliance’ with EU law be evaluated, and would interpretations by the Luxembourg Courts be taken into account?

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