6th June 2022
Constitutional law should not be exciting.
Constitutional law should be dull.
This is because constitutional law provides for the parameters of normal political action – and so when those parameters are being frequently contested or transgressed, then that indicates something is wrong with the body politic.
Since 2016, the constitutional law of the United Kingdom has been continuously, relentlessly exciting.
And today we have the extraordinary situation of the current Prime Minister facing a no confidence vote in his party leadership from his own backbenchers.
Let us unpack this remarkable situation and work out what is happening (and not happening) and what may happen next (or not happen next).
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We can start with a document disclosed over the long jubilee weekend:
Tory MPs who want Johnson out have this weekend been circulating a briefing document setting out why. It warns the party is on course to lose the next election & concludes “the only way to end this misery, earn a hearing from the British public… is to remove Boris Johnson as PM” pic.twitter.com/XxiCqqiILR
— Adam Payne (@adampayne26) June 5, 2022
This is the most well-written and well-structured and most thought-through document from any Conservative politician in years.
Conservative politicians can do it when they need to do so.
It just goes to show what can really matter to them.
And it is interesting and significant what is contained in this document, and what is not.
You will see that the content is entirely about party advantage.
This makes sense, in a way, for a vote of confidence in a party leader is about them as a party leader.
And not about them – at least directly – as a prime minister.
Let us now go to another document, which was published earlier today.
This is the Downing Street’s attempt to counter the document above:
NEW: Being circulated by no10 ahead of tonight’s vote – leadership contest would “unleash a distracting, divisive and destructive civil war in the Conservative party… dominating the agenda and alienating voters” 🔥 pic.twitter.com/ll0ZIOZ02V
— Tamara Cohen (@tamcohen) June 6, 2022
The underlining and italics suggest desperation – and we should be glad there has been no resort yet to BLOCK CAPITALS.
Putting these two documents together tells you a great deal about the state of the governing party – and of the states of mind of those involved.
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And now, a third document.
This is a letter to the Prime Minister from Jesse Norman, a former minister with a serious interest in constitutional matters:
I have supported Boris Johnson for 15 years, for the London Mayoralty and for PM. Very sadly, I have written to him to say I can no longer do so, for the reasons set out below. pic.twitter.com/0Mjs4hjeSF
— Jesse Norman (@Jesse_Norman) June 6, 2022
I have a lot of time for Norman – he is the author of good books on Adam Smith and Edmund Burke as well as of this delightful online memoir of his late father-in-law, the great judge Tom Bingham.
So much time do I have for him on constitutional issues that I found it surprising – and disappointing – that he did not join Lord Keen in resigning from the government when it was proposed that primary legislation be enacted so as to enable the government to break the law.
Norman soon lost his ministerial job anyway.
His letter sets out the policy – as opposed to the partisan – basis for removing Johnson as party leader and as Prime Minister.
The case could hardly be put better from a Conservative perspective.
But.
Two things.
First, there is little in Norman’s letter that was not true last week – or indeed last month, or even last year.
And second, today’s vote is about confidence as a party leader, rather than as Prime Minister – and one suspects that if there were to be a formal House of Commons vote of confidence as Prime Minister, Norman may not vote with the opposition.
Yet such counterpoints aside, Norman’s letter is important and it is good and welcome that it has been written at all.
It certainly shows that detailed and reasoned critique of the Prime Minister can be made from a Conservative perspective.
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And now another document – the resignation letter of the anti-corruption ‘tsar’ (and please can we abandon the ‘tsar’ title):
I’m sorry to have to resign as the PM’s Anti-Corruption Tsar but, after his reply last week about the Ministerial Code, it’s pretty clear he has broken it. That’s a resigning matter for me, and it should be for the PM too. Here’s my letter to him explaining why. pic.twitter.com/0Wi6QWsMbI
— John Penrose (@JohnPenroseNews) June 6, 2022
This is a critique from a third perspective – to join the partisan and policy perspectives set out above.
Here the primary complaint is that the Prime Minister was in fundamental breach in terms of his accountability as a leader.
This ties in with the issue set out in a recent post on this blog about the meaning – and meaninglessness – of ‘taking full responsibility’ as an evasive rhetorical act but nothing else.
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These letters provide some heavy firepower – from three perspectives the case against the current Prime Minister is compelling.
Yet these letters are not enough to remove him.
It may well be that today’s vote is not even enough to remove him, at least as Prime Minister.
As I have set out elsewhere today, it is conceivable – indeed, plausible – that even if Johnson loses today’s vote, he will seek to stay on as Prime Minister.
There is no formal mechanism to get rid of him, and – following the 1975 Australian political crisis – the Queen is unlikely to top her jubilee weekend with a sacking on the back of just a party vote.
It would take a vote of no confidence of the House of Commons in Johnson as a Prime Minister – and even if he lost that, he could seek a general election.
And the mere threat of calling such an election may well mean that he will not lose – perhaps even face – such a parliamentary vote.
We have the makings of a political and constitutional crisis.
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Some political opponents say that it would be better for Johnson to survive as Prime Minister, so that he can be decisively defeated at a general election.
This would be so Johnson and his brand of politics is not only defeated, but seen to be defeated.
There is merit in that idea – a general election reversing the mandate of the 2019 general election.
But such an approach is risky – especially given Johnson’s survival skills as a politician.
It would also mean that the constitution faces two more years of the strains and contortions of dealing with a Johnson premiership.
It may well be that the constitution will not be able to cope.
So the more prudent action would be for Johnson to somehow go now,.
Our uncodified constitution has many faults – and detractors – but it is adept at allowing the removal of Prime Ministers between general elections as well as at general elections.
In my lifetime, Wilson, Thatcher, Blair, Cameron and May all were replaced between general elections – and, even further back, so were Asquith, Churchill, Eden, and Macmillan.
It is quite normal – constitutionally speaking – for a Prime Minister to be replaced mid-term.
But one problem with an uncodified constitution, however, is that it can depend on voluntary compliance with conventions and precedents.
Johnson is a one-person walking negation of such a principle.
And so we are likely to have an exciting week, constitutionally speaking.
Brace, brace.
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I enjoyed your excellent analysis. Thank you!
Some right-wing commentators are trying to claim that the confidence vote in Johnson is part of a plot by Remoaniacs to reverse Brexit.
The obvious response to this is to point out that such suggestions are ‘Project Fear’.
(Of course, the original ‘Project Fear’ predictions turned out to be true – but Brexit supporters dare not admit that!)
Brexit can’t be very robust if it relies on the current charlatan being in post. Are we seriously meant to believe that we will rush back into the EU (or EU Light) if Johnson isn’t there to stop it. Utter baloney, isn’t it?
“the Queen is unlikely to top her jubilee weekend with a sacking on the back of just a party vote”
We can but dream.
She is, of course, well-known for her discretion so we won’t know what she really thinks; however, I like to think of her sending him some form of message along the lines ‘I’ve got a tenner on me being still in post after you’ve gone?’
Or maybe she’ll just ask if he’d like to discuss his resignation honours.
We get into very choppy water if Johnson loses the confidence of his MPs but refuses to resign as prime minister.
When they next speak, perhaps the Queen should gently ask how he can be sure he retains the confidence of the House of Commons – not that should should necessarily believe anything he says: and that surely is a main part of the problem.
Even if Johnson lost a vote of confidence in the Commons, would the Queen necessarily grant his request for a dissolution, if the Conservative MPs had already elected another person as their leader, who could form a government with a substantial majority?
For what it is worth, I think Sir John Kerr’s actions in 1975 were justified. The Australian parliament was at an impasse, and Gough Whitlam convincingly lost the resulting election.
The bigger problem for a Tory Party at war with itself is what happens if he declines to go: there would clearly be a VONC in the House and Tories would have to choose between voting against him or voting for a PM they had just declared they had no confidence in. The latter seems unlikely, particularly as a parliamentary VONC requires a lot fewer than 180 to be against him.
Trying to avoid a parliamentary VONC by dissolving Parliament would be a nuclear option, and indeed, a constitutional mess. But in truth, I think the 1922 would immediately firm up their rules and depose him completely. The spectacle of him trying to hang on is too damaging.
‘Would the Queen grant’
Therein lies the constitutional problem. The 2011 Fixed Term Parliament Act removed most of the remaining real powers of the monarch – such as the power to dismiss a sitting PM which although never used in modern times in the UK was in place. HM also lost the power to refuse a request for an early GE.
These powers were placed in the HoC via such things as the requirement for a two thirds majority approving an Act for an early election.
Then in May this year the Tories repealed the FTPA but the former powers of the monarch were not returned but instead posited in the office of the PM.
Things could get very exciting if Johnson loses the party leadership but refuses to step down as PM.
This part of the thread is exclusively for Andrews.
I think he has the hide of a rhino but will go if he loses the parliamentary VONC. His entire cabinet would have to resign, no future leader could support him staying on.
Perhaps I am being dense today: which provision of the Fixed-term Parliaments Act 2011 removed the power of the Queen to dismiss the prime minister? Here it is: https://www.legislation.gov.uk/ukpga/2011/14/enacted
And which provision in the Dissolution and Calling of Parliament Act 2022 puts revived prerogative powers of the monarch back into the hands of the prime minister, when those powers were not already in those hands before 2011? Again, here it is: https://www.legislation.gov.uk/ukpga/2022/11/enacted
Perhaps the Queen will always – or almost always – accept the advice she is given, but in this case, isn’t she still the one taking the action?
“We get in to very choppy water if Johnson loses the confidence of his MPs but refuses to resign as Prime Minister.”
Well, quite.
Obviously Labour would immediately table a “Vote of No Confidence” in the government. It’s easy to look at that likely next step and conclude that should they do so, the Tory rebels who voted to remove Johnson would likely reverse course if they think their own seat would be up for grabs.
But this is where the calculus gets difficult. If the current PM continues with his present kamikaze approach to the EU, to his own conduct and to that of his appointed ministers and staff, those same back-bench MPs are going to think that “Things can only get worse”.
Today, MPs might consider that there is not enough negative sentiment in the country to cost them their seats. The thing is, with energy prices set for another sharp increase in October, with inflation biting, with trouble with the EU growing in scale, complexity and difficulty, those same Tory MPs might actually decide that now would be a perfect time to call a General Election. Before things inevitably get a whole lot worse.
Part of that calculation must include an attempt to forecast the state the country will be in if the next GE takes place at the scheduled time… and whether things will have improved from today or continued to slide. Watching Johnson’s behaviour on so many fronts, I can’t help but think that this may be a dangerous time for the PM.
And I’m sure that Labour would be quite happy to support a VNC if it comes it.
Brace, brace, indeed.
It will be down to the Labour front bench to propose the vote of no confidence, unless the Government chooses to propose a vote of confidence. They’re the same thing really except that Aye and No have opposite meanings. It’s unlikely that a backbencher would get parliamentary time to propose the motion.
It’s conventional that the Government grant time to debate a motion of no confidence, but with this Government it may have to wait for an Opposition Day.
Labour will not table the confidence motion unless they’re reasonably sure they can win it.
Now that the FTPA has been repealed, there is no automatic action following from a successful vote of no confidence (or a failed vote of confidence). It’s still up to the PM to resign (and recommend a successor to the Queen) or to request a dissolution.
Of course if he did not do either of these things, I think the Queen would have to seriously consider dismissing him, or dissolving without the PM’s advice. She’d either have to pick a successor herself – which caused controversy when she picked Alec Douglas-Home – or possibly be accused of not giving the Tories long enough to choose one themselves. (It being unlikely that enough Tories would actually cross the aisle to put, say, Starmer in as PM.)
With the FTPA being repealed, MPs also have no say at all in dissolution. It’s completely at the PM’s discretion.
This is ancient history, but as I understand it, the Queen – just five years on the throne, and in her early 30s – was advised by Churchill and Lord Salisbury that the cabinet supported Macmillan over Butler when Eden resigned in 1957, when many expected Butler as Chancellor of the Exchequer to be in pole position.
And then she was advised by Macmillan to send for the 14th Earl of Home when Macmillan himself resigned in October 1963 (at that time, still in her 30s, she was several months pregnant with her fourth child: I’m not saying it made a difference, but she is an individual and I think context matters). Other candidates were also in the mix – principally Butler again, by then First Secretary of State and in effect Macmillan’s deputy, but also Maudling and Hailsham, who also resigned his peerage to enter the Commons. Cautiously, at first the Queen asked Lord Home to try to form a government, which he managed to do the following day when Butler agreed to serve in his cabinet (for much good it did either of them, losing the general election to Wilson in 1964, just under a year later).
I’d be very surprised if the Queen took much of an active role in steering either choice, rather just doing what she was advised to do by the politicians, in an effort to avoid entangling her in any political controversy.
Well, it seems our present “interesting times” will continue for some weeks or months, with a prime minister who appears, to use Norman Lamont’s words in 1993, to be “in office but not in power”.
Perhaps things will look different after the next by-elections …
A new curse for the modern era:
“May you live in constitutionally interesting times.”
Could almost be funny, if it wasn’t going to be so painful…
The document outlining why the tory party should ditch De-Pfeffel is an open admission that “Partygate” is a thing only because it isolates De-Pfeffel’s wrong doing on a very narrow and (if we’re honest) largely trivial matter from the very questionable actions of the Conservative party and government as a whole for well over 2 years.
Jesse Norman’s letter is hilarious in the way it re-enforces this point – “As PM, you have been dealt a very difficult hand with Covid and Ukraine, and you deserve great credit for much of the way in which this government has handled these twin crisis”. I mean, one of the largest per-capita Covid death tolls in Europe is heralded as a success by these people. Ukraine is another countries crisis where the UK’s influence is negligible.
What we’re seeing is a party in self preservation mode, they’ve managed to hang one relatively trivial matter on a leader who they all happily endorsed 3 years ago, helped in no small part by a media who won’t let that particular issue die. What will be fascinating is who they (the RW media) will offer as their choice as De-Dfeffels successor. I’m hoping it’s Truss, I could do with a laugh.
It’s days like today when yet another Tory PM is on the rocks because of a matter plucked out of the ether by a press who are now clearly embarrassed by their endorsement of him that makes me glad I live in a fully functioning democracy.
“… on a very narrow (and if we’re honest) largely trivial matter…”
Here’s the thing, though. It isn’t whether you or I think that the PM’s casual indifference to laws he had only just put on the statute is a trivial or non-trivial matter. I’m tempted to leave that to the constitutionalists, or at the very least, the legally trained.
But the question is actually more about whether or not it is acceptable for any minister to lie to the House, in particular at the Dispatch Box.
If De-Pfeffel is willing to lie about a “largely trivial matter”, then how do you suppose he would react if faced with something that is more serious? How do you suppose he reacts to more serious matters when put before him for his strategic input. Like for example, oh I don’t know, the direction the UK should take in negotiation the Northern Ireland Protocol with the EU.
The problem isn’t the number of glasses of tipple he consumed, or how long he stayed, or what happened in the parties while he was present or after he left. The problem was that he attended, but told the House he did not. The problem is that he was given ample opportunity to correct his false statements and chose not to. The problem is that even now he is trying to hide behind the specious argument that he was “showing leadership” (as opposed to enjoying drinks with his cronies).
The problem is that when you bring all of this together you have a PM who believes that ministerial obligations and laws are for others, that he has “absolute immunity!” Hmm… Now, where else I heard that recently?
Jesse Norman shows, like we always thought, that he supports the Conservative Party that was, and rejects the Trumpish ways of the English National Party it has become. A lot of Tory MPs who expressed such moderate, sensible and democratic opinions have been kicked out, like Dominic Grieve. Is it too soon to come out from hiding, or has Norman just signed his political death sentence?
Thank you for the link to the Tom Bingham memoir; that made for a really rather lovely break from the traumas of constitutuionalism :-)
“England is governed not by logic but by parliament.” ― Benjamin Disraeli.
The trouble is most of our problems are insoluble. We might change the PM but that won’t conjure energy from cucumbers nor houses from land without grumbling nor industry from an overpriced and unfriendly market.
We might get a change of name but it will achieve nothing. The next incumbent will have to be just as much a liar to keep the plates spinning.
Anyway I am sure the denizens of Parliament are well aware and let the greased piglet go free. So we go on.
The problems are solvable, but our Government chooses not to solve them. Government is virtually omnipotent should it choose to be, instead it chooses to be impotent. Largely because it suits their donors and their own private interests to maintain the status quo.
“In my lifetime, Wilson, Thatcher, Blair, Cameron and May all were replaced between general elections”
I’m guessing that the only PMs in your lifetime to be replaced at general elections were Brown, Major and maybe Heath. And of those, only Heath became PM at a general election?
So the template that a PM’s tenure begins and ends with a general election has not held for half a century.
I think that may be right
I forgot Callaghan, who falls into same category as Brown and Major (ended at general election, but didn’t start at one).
Heath is, I think, the last person to both (i) become prime minister
by winning a general election as leader of the opposition (June 1970) and (ii) continue as prime minister until leaving office as a result of losing a general election (February 1974).
Since then, Wilson won two general elections in 1974 (and also in 1964 and 1966) but resigned in 1976. Callaghan became PM without a general election, and lost in 1979. Thatcher won in 1979, and 1983, and 1987, but resigned in 1990. Major became PM without a general election: he won the election in 1992, but lost in 1997. Blair won in 1997, and 2001 and 2005, but resigned in 2007. Brown became PM without a general election, and lost in 2010. Cameron won in 2010 and 2015, but resigned in 2016. May became PM without a general election in 2016, lost ground in 2017 and resigned in 2019. Johnson became PM without a general election in 2019, and then won one. And here we are.
You could count Wilson’s first term: he won the election in 1964 and 1966, and served as PM until he lost the election in 1970, but he resigned during his second term. Before then, I think you have to go back to Attlee (1945 and 1950 to 1951).
If there is a template that a PM’s tenure begins and ends with a general election, that is the exception rather than the rule.
Johnson himself has been very adept at changing, or attempting to change the rules, when he finds them irksome. Presumably the 1922 Committee can also change its rules if Johnson refuses to go having lost a confidence vote. It could repeal the twelve month no re-vote rule and then repeat the NC vote until even the most thick skinned rhino finds his position untenable. I suspect he will win by a small margin and continue to wreck the country and his party until he is prised out of Number 10 with a crowbar, kicking and screaming.
Many years ago during Thatcher’s first term I worked night shifts alongside a particularly loud and aggressive Socialist.
At 3.AM he came out with this gem:
“Once a Council house always a Council House. “.
He was a man evidently not to be trifled with. A few nights later he
surpassed himself with this:
“ Thatcher ? Her own kind will get rid
of her. “
The sentiment was so deep his words have never left me.
Whatever the constitutional niceties tonight the writing is on the wall just as it was for Johnson’s Turkish forefather all those years ago.
The real issue now is who sorts out the mess and who picks up the tab .
Too soon to say who will be asked to sort out the mess, but I can tell you will will pick up the tab.
Us.
Whether he limps on for a choppy wee while makes no odds. His MPs know that they cannot win the next election with this crime minister. But the tories have not been able to find any leader I would drink with since maybe Major. A change of tenant at N°10 will not change where they have sat themselves now. It will need a tempest. Brace indeed.
The BBC are reporting that Johnson wins by a vote of 211 to 148.
Not quite enough to be convincingly wounded; but not strong enough to be convincing. Subtract the Ministers and Ministers-in-Waiting and it starts to look pretty weak.