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

Parliament must act quickly to exert influence if it wishes to prevent a ‘no deal’ Brexit

NGQojaZG_400x400 (1)In four months’ time, the extension to the Article 50 period agreed in April will expire. The UK will have a new Prime Minister by then, although it remains unclear what position they will take if the Commons continues to refuse to approve the Withdrawal Agreement. Jack Simson Caird analyses the legal and political mechanisms available should parliament seek to prevent the next Prime Minister taking the UK out of the EU without a deal.

Boris Johnson has said that if he is the next Prime Minister the UK will leave the EU on 31 October with or without a deal. Theresa May, made the same pledge before the original Article 50 deadline on 29 March. However, after coming under significant pressure from MPs, she did not follow through and sought two extensions from the EU (resulting in the current exit day of 31 October).

Since Theresa May said that she would step down, there has been significant debate over whether the House of Commons could prompt Prime Minister Johnson to avoid ‘no deal’. In this post, I argue that MPs could stop a Prime Minister determined to deliver ‘no deal’ by putting the new leader under extreme pressure to reveal his position on Brexit from the very beginning of his premiership. There is no guarantee that steps taken by parliament to prevent ‘no deal’ would be legally effective, but the events in the first half of 2019 have shown that parliamentary pressure can result in a shift in the government’s position. It is constitutionally unsustainable for a government to pursue a policy which does not have the support of a majority of MPs. This fact will be front and centre from the very moment the new Prime Minister takes over.

Commanding the confidence of the Commons and ‘no deal’ Brexit

When the Conservative Party appoints a new leader, the next natural step is for Theresa May to go to the Queen and recommend that the MP chosen – likely to be Boris Johnson – is best placed to command the confidence of the Commons and should be appointed Prime Minister. This is usually a constitutional formality. However, unlike when Theresa May was appointed, the next Prime Minister will take over a minority administration. Furthermore, Theresa May resigned after it became clear that there was no prospect of her being able to get a majority for the Brexit deal in the Commons (and because she was not prepared to leave without a deal in the face of opposition from a majority of MPs). In fact, some Conservative MPs have already indicated their potential willingness to vote down a Johnson government if the new Prime Minister sought to pursue ‘no deal’. Should such claims become louder in the coming weeks, Theresa May might struggle to give the necessary assurances to the Queen that the person she recommends can command the confidence of a majority of MPs. Even if she does, the new Prime Minister will clearly be in a delicate constitutional situation. 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

Is Tory unionism the greatest obstacle to Brexit?

image_normalAs the Brexit process continues, the Conservative Party is finding it hard to reconcile its desire to leave the EU with its longstanding commitment to maintaining the territorial and political union of the United Kingdom. Michael Kenny argues that, far from introducing a destabilising element to an otherwise sound constitutional set-up, Brexit has instead amplified and accelerated the debate about the UK’s territorial constitution.

‘I didn’t know it would break the United Kingdom’. This regretful rumination from columnist Peter Oborne – in a fascinating interview given in the wake of the recanting of his support for Brexit – touches on one of the key developments in the Brexit story. This is the gathering realisation in some Conservative circles that leaving the EU may well be incompatible with one of the foundational values of the Conservative party – the preservation of the integrity of the United Kingdom.

The painful discovery that these two goals are very hard – and maybe impossible – to reconcile is one of the great under-estimated political ironies of Brexit. For it has been those calling for the UK’s departure from the EU who have talked most confidently and directly about the distinctive character of Britain’s model of parliamentary sovereignty and the territorially differentiated unity expressed in in its constitutional arrangements. And whilst anxieties about whether Brexit might reignite the independence cause in Scotland were aired in the campaign leading up to the 2016 referendum, for the most part these remained at its margins.

But Prime Minister Theresa May has sounded a more anxious note ever since she entered office in July 2016. She has repeatedly – and a little mechanically – invoked the importance to her own politics of ‘our precious union’, a mantra that betrays a telling worry about the implications of a vote which accentuates a growing sense of political differences across the different nations and peoples contained with it, and also signals the salience in her own mind of the question of what implementing Brexit means for the domestic union. Continue reading

Monitor 68: A constitution in flux

The latest issue of Monitor, the Constitution Unit’s regular newsletter, was published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen the EU (Withdrawal) Bill pass from the Commons to the Lords; the failure of talks in Northern Ireland; and a significant government reshuffle. Abroad, Ireland is considering a permanent constitutional change and Japan has seen a constitutional first as its current emperor confirmed he is to abdicate. This post is the opening article from Monitor 68. The full edition can be found on our website. 

The UK is experiencing a period of deep constitutional uncertainty. In at least four key areas, structures of power and governance are in flux. Screenshot_20180308.210141 (1)

The first of these, of course, is the nature of the UK’s future relationship with the European Union, to which the Brexit negotiations will shortly turn. The degree to which the UK continues to pool its sovereignty with other European countries depends on the form of that relationship: how far, and on what issues, the UK continues to adhere to EU rules, align closely with them, or follow its own separate path. Theresa May set out her most detailed proposals yet in a speech at Mansion House on 2 March, advocating close alignment outside the structures of the EU Single Market and Customs Union. On 7 March, the President of the European Council, Donald Tusk, published draft guidelines for the EU’s position. As before, this emphasises ‘that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking.”’ What deal will emerge from the negotiations is entirely unclear.

The government’s preferred path will face stiff resistance in parliament too. In late February Jeremy Corbyn signalled that Labour wants a UK–EU customs union (an issue also central to the conclusions reached by the Citizens’ Assembly on Brexit). Consequently the government now risks defeat on an amendment to the Trade Bill pursuing the same objective, tabled by Conservative backbencher Anna Soubry. Beyond that, an amendment to the EU (Withdrawal) Bill passed in the House of Commons in December guarantees that the deal between the UK and the EU agreed through the Brexit negotiations will need to be endorsed by an Act of Parliament in the UK. Brexit’s opponents are increasingly vocal and organised, and occupy a strong position in Westminster. The odds remain that Brexit will happen, but that isn’t guaranteed. Continue reading