12th June 2023
For a brief, wonderful moment today it seemed that yet more constitutional drama could be squeezed out of the ongoing antics of former prime minister Boris Johnson.
On Friday Johnson announced his resignation from the House of Commons:
“So I have today written to my Association in Uxbridge and South Ruislip to say that I am stepping down forthwith and triggering an immediate by-election.”
Some (including me) took his deftly worded statement to mean that he was resigning as a Member of Parliament with immediate effect.
But look where “immediate” is actually inserted in his statement. Clever.
In fact, Johnson did not resign from the House of Commons on Friday.
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Of course – strictly speaking – a Member of Parliament cannot “resign” – though there is no point in making this distinction in general commentary.
What a voluntarily departing Member of Parliament has to do is to place themselves in disqualification from sitting in the House of Commons.
And in practice, this means applying for and being appointed to one of two ancient offices for profit.
This is section 4 of the House of Commons Disqualification Act 1974:
In practice what this means is that a Member of Parliament has to make an application to the Chancellor of the Exchequer for appointment to one of these offices – and when the Chancellor of the Exchequer endorses the warrant of appointment, the parliamentary seat becomes vacant.
This, in turn, means – thought this is a distinct step – a writ for a by-election can then be moved in the House of Commons.
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This is what Erskine May, the parliamentary rulebook says:
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Usually, there is no problem with any of this pantomime – for usually such a resignations are one-offs and occasional.
And so normally the appointments gently alternate between the two ancient offices.
If more than two Members of Parliament resign at once – as when the Northern Irish unionist Members of Parliament did in 1985 – the appointments have to be staggered so that each office is nominally filled in turn.
These are the lists from Wikipedia of the most recent appointments to both offices, and the reasons for the Member of Parliament leaving the House of Commons:
And although the system does not really make much sense, and is based ultimately on a constitutional fiction (there is no pay – or profit – for holding the office), it works.
There may be no way of resigning as a Member of Parliament in a technical sense, but there is a means of doing so by employing some quaint, archaic mumbo-jumbo.
It is another example of how our constitutional arrangements miss the direct point, and so we have to have a charming work-around instead.
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But.
Earlier today there was the prospect of Johnson bringing excitement to another odd little constitutional corner – though here unwillingly on his part.
(And remember constitutional matters should not be exciting, they should be dull.)
What if…
…the Chancellor of the Exchequer did not appoint Johnson to one of these two offices?
What if, in effect, Johnson’s resignation from the House of Commons was delayed or even refused?
According to the fine experts at the House of Commons Library, it is possible for the appointment to be refused by the Chancellor of the Exchequer – thereby preventing the resignation from taking effect- though this has not happened since Victorian times:
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There is an argument that a Member of Parliament facing an imminent report into their conduct should not be able to resign and avoid any sanction.
And if, in such circumstances, the Chancellor of the Exchequer refused to make the appointment until after the Commons voted on the report and any sanction, it is difficult to see what Johnson could have done about it.
(Though it would have been fascinating and fun to see whether this exercise of discretion by a government minister was amenable to judicial review by the High Court.)
Johnson would have been forced to stay as a Member of Parliament while the privileges committee report was debated and any sanction voted on.
And it is hard to see how he could have avoided it.
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But alas, we shall not have this constitutional amusement.
For this afternoon Johnson resigned.
Johnson was appointed to the stewardship of the Chiltern Hundreds, and Wikipedia was updated accordingly.
So we will have to wait a bit longer for our next constitutional excitement.
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For more on this procedure, please read the excellent House of Commons Library briefing.
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This comes across as a bit of a tease.
In my ideal World Johnson would have run through the whole procedural gamut and humiliation of, and I may miss part of it, Publication followed by Commons vote then expulsion for more than 10 days with a by election lost by a vast majority to a Hamster.
https://twistedsifter.com/wp-content/uploads/2010/12/farside-comic-gary-larson-dog-leads-cat-to-washer.jpg
https://www.thefarside.com/
Is there not something within your readings of the archane runes that would make this happen and if not what is the point of them or tea leaves for that matter?
The Commons could still remove Johnson’s Parliamentary pass, as was done with Bercow.
And can note the findings of the Committee. Is there any reason that they can’t approve the findings and support the recommended punishment even though it won”t be put into effect?
PS:
This connects to the wider issue of resignation before disciplinary proceedings are complete. It probably achieves public attention most commonly for police officers. And of course it’s different for occupations (usually professions) which have a register of permitted practitioners rather than simply contracts of employment. This allows disqualification from future practice.
A couple of other interesting aspects. When Gerry Adams wished to resign from the Commons prior to running for the Dail, as a staunch Irish `Republican, he refused to apply for an office of profit under the Crown. George Osborne appointed him to the Manor of `Northstead anyway, without his applying for or accepting the appointment. This raises the possibility that a Chancellor who declined to be bound by convention might try to appoint whoever he (dis)likes to the office – or would that be judicially reviewable`?
And in `Anthony Trollope’s The Three `Clerks, The Hon Undecimus Scott, disgraced member for Tillietuddlem, was denied the `Chiltern Hundreds so the House could mark its disapproval of his conduct by expelling him:
“ But he was still a Member of Parliament. The Parliament, however, was about to be dissolved, and, of course, it would be useless for him to stand again; he, like Mr. M’Buffer had had his spell of it, and he recognized the necessity of vanishing. He at first thought that his life as a legislator might be allowed to come to a natural end, that he might die as it were in his bed, without suffering the acute pain of applying for the Chiltern Hundreds. In this, however, he found himself wrong. The injured honour of all the Tillietudlemites rose against him with one indignant shout; and a rumour, a horrid rumour, of a severer fate met his ears. He applied at once for the now coveted sinecure,—and was refused. Her Majesty could not consent to entrust to him the duties of the situation in question—; and in lieu thereof the House expelled him by its unanimous voice.”
“This raises the possibility that a Chancellor who declined to be bound by convention might try to appoint whoever he (dis)likes to the office – or would that be judicially reviewable`?”
A supplementary theoretical possibility to the above: if a convention-busting, Trumpian government were on the verge of losing its Parliamentary majority, could the Chancellor repeatedly appoint Opposition MPs to these ceremonial positions (against those MPs wishes), thereby triggering a rolling series of by-elections to maintain the rogue government’s grip on power?
From the House of Commons Disqualification Act 1975, 8 (1): No person being a member of the House of Commons, or for the time being nominated as a candidate for election to that House, shall be required to accept any office or place by virtue of which he would be disqualified by this Act for membership of that House, or for membership of that House for the constituency for which he is sitting or is a candidate.
So that has been thought of and dealt with.
It is a shame that the Chancellor did not see, or did not want to indulge, this opportunity for political drama. It would have been just to make him stay an MP and face Parliamentary justice.
Couldn’t two of the resigning MPs apply for one of the roles, each on a part-time basis?
This is, after all, the 21st Century and Boris does have an ever growing family to look after.
Work life balance in action.
Oh do please write a book called “The Bailiff of the Chiltern Hundreds” and let your imagination run riot in fictionalising how the story unfolds over the decade leading up to this moment. O frabjous day! Callooh! Callay! (Speaking as a native of Uxbridge & Ruislip)
‘Boris of the Children Hundreds’ more like, if rumours are to be believed.
Hahaha. I wish I’d thought of that!
It seems Mr Johnson now has the honour of having previously had the Northstead role, and now having the Hundreds too. His family must be very proud.
Reading the list of recent appointments, I can’t help but wonder what reason will be given for e.g. Dorries. ‘To pursue media opportunities’ might be more generous, if less truthful, than ‘Because waah waah waah I wanted a peerage it’s not fair!!!’
I missed the significamce of your opening remarks about the positioning of the word “immediate”. It was a bit odd in that it’s not in his gift to “to trigger an immediate bi-election”. A bi-election, certainly, but its immediacy or otherwise is in the hands of the Prime Minister. I have observed in the past that Johnson just about always managed to insert a covert extra word into his statements, such that there’s always a caveat, but a caveat that goes unnoticed by the media in general and headline writers in particular.
On the faace of it, I don’t think he’s done that this time. He was just looking for two different words that meant “Straight away”. His whole statement this time looks hurried and angry, and he even manages to insert a few untruths into it. Given that untruths were the reason for the Privileges Committee investigation, it’s a bit careless to repeat the same behaviour when writing a passionate declaration of innocence.
A couple of other interesting aspects. When Gerry Adams wished to resign from the Commons prior to running for the Dail, as a staunch Irish Republican, he refused to apply for an office of profit under the Crown. George Osborne appointed him to the Manor of Northstead anyway, without his applying for or accepting the appointment. This raises the possibility that a Chancellor who declined to be bound by convention might try to appoint whoever he (dis)likes to the office – or would that be judicially reviewable?
And in `Anthony Trollope’s The Three Clerks, The Hon Undecimus Scott, disgraced member for Tillietuddlem, was denied the Chiltern Hundreds so the House could mark its disapproval of his conduct by expelling him:
“ But he was still a Member of Parliament. The Parliament, however, was about to be dissolved, and, of course, it would be useless for him to stand again; he, like Mr. M’Buffer had had his spell of it, and he recognized the necessity of vanishing. He at first thought that his life as a legislator might be allowed to come to a natural end, that he might die as it were in his bed, without suffering the acute pain of applying for the Chiltern Hundreds. In this, however, he found himself wrong. The injured honour of all the Tillietudlemites rose against him with one indignant shout; and a rumour, a horrid rumour, of a severer fate met his ears. He applied at once for the now coveted sinecure,—and was refused. Her Majesty could not consent to entrust to him the duties of the situation in question—; and in lieu thereof the House expelled him by its unanimous voice.”
Good fun, all of this, but it goes some way to explaining why so many hold Parliament in contempt. An institution that has shown itself incapable of reforming itself is in no position to reform others.
I suppose a Carbonite slab is out of the question.
That is exactly what I was hoping for but my wishes have been unfulfilled. The system has prevailed yet again.
Schedule 1 of the Act contains a very long list of jobs which are offices of profit and lead to an MP being disqualified. I did not know, for example, that an MP can’t get a job working for the Environment Agency. I suspect some of the legal ones may have come up occasionally, such as a lawyer MP being appointed as a judge.
The really big thing that I learned from my time down this particular rabbit hole is that an MP becomes disqualified if appointed as Lyon King of Arms. This piece of useless but quaint information has brightened my day immeasurably.
This isn’t strictly the case: “In practice what this means is that a Member of Parliament has to make an application to the Chancellor of the Exchequer for appointment to one of these offices”
Neither Gerry Adams nor Martin McGuinness made applications to one of these positions (not even the ‘Escheator of Ulster’, which according to Wikipedia is another archaic post that could be availed of for this purpose). The Chancellor at the time appointed them anyway to facilitate their resignations from the Commons (though they refused to recognise their resultant supposed status as officers of the Crown).
Ov course, neither man ever swore allegiance to the monarch (and thus never took their seats in Parliament). Which does mean that these ‘officer of the Crown’ posts seemingly do not require the office bearers to swear allegiance to the Crown. (There might be a trivia/pub quiz question in that.)
By happy coincidence, the fascinating “Mr Memory” account on Twitter is today talking about the 1933 Altrincham by-election. Which has led me to learn about Cyril Atkinson KC MP, who left the Commons without being appointed to either of the sinecures, as he’d been appointed a high court judge.
The same seems to have been the case with Terence Donovan (later Lord Donovan) in 1950 and his successor as MP for Leicester North-East, Lynn Ungoed-Thomas in 1962. Indeed, it used to be quite common for an MP to be appointed a Judge (or, indeed, as with Gordon Hewart in 1922, Lord Chief Justice), and I don’t think any of the individuals concerned applied for the Chiltern Hundreds or the Manor of Northstead en route.
The point is disqualification – being appointed to the bench or to the Chiltern Hundreds are just two ways of disqualification.
Indeed.
There is, in a sense, a measure of irony in the key being “appointed to an office of profit…” Anybody who is successful enough to be a credible appointment to the High Court Bench is actually going to suffer a considerable financial loss by being appointed. During the 1950s Donovan actually investigated the possibility of going back to the Bar.
Nadine Dorries said last week that she would resign with immediate effect, but she seems to have changed her mind.
Having made her clear initial public statement, I wonder if she could still be appointed to the Chiltern Hundreds against her will?
Or, to put the question another way: what remedy would she have if she was so appointed?