6th July 2022
Since 2016 we have had in the United Kingdom a great deal of constitutional drama.
We have had a referendum; supreme court cases; departure from the European Union; a hung parliament; and prime ministers come and go.
This has been all very exciting – though, of course, constitutional affairs should not be exciting.
They should be dull.
This is because a constitution sets the parameters of everyday political action – the rules of the game – and if those parameters are being continuously tested and contested then that indicates all is not well with the polity.
But for all this drama, there has not yet been a constitutional crisis – close, but not quite.
Here ‘crisis’ means a serious situation, the outcome of which is not certain.
And ‘constitutional crisis’ means such a situation where there is the prospect of a constitutional tension hardening into a contradiction.
Since 2016, whenever it has looked like that a constitutional drama was coming close to an actual crisis, the situation has resolved: court orders were complied with, and Article 50 extensions were put in place, and so on.
Something gave way each time.
But.
What happens if the current Prime Minister Boris Johnson keeps refusing to resign?
As it stands he is the leader of a majority party, which he led to victory at the 2019 general election.
Since then he has had a collapse in political support, and in the last couple of days at least twenty members of the government have resigned.
It may well be that his own parliamentary party has another vote of confidence, which he may lose.
Or he may be told by senior backbenchers that he should resign, or face such a vote.
In normal times such a besieged Prime Minister would resign.
But what if Johnson refuses?
What if he says no to the delegation?
What if he refuses to quit after losing a vote of no confidence as leader of his party?
We would have a serious situation, certainly.
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First, however, we need to distinguish between his respective positions as party leader and as Prime Minister.
A successful vote of no confidence in him as leader of the Conservative Party does not – in and of itself – remove him as Prime Minister.
And from time to time, we have had Prime Ministers who were not party leaders.
So the leadership of his party could be taken from him – but that would not mean automatically that he would cease to be Prime Minister.
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There would then be a problem.
His parliamentary party could perhaps seek to force the issue and support a parliamentary (rather than a party) vote of no confidence – but that may risk Johnson seeking a general election (which a Prime Minister can ask the Queen for, now that the Fixed-term Parliaments Act is repealed.
Or they could join others in our society and go on strike, and refuse to support government business.
But other than that, and tutting loudly, there is little that the parliamentary party can do directly to remove an unwanted Prime Minister.
Indirectly, however, they can elect a new leader – and hope (and expect) that new leader to be invited by the Queen to form a government.
For it is only the monarch, in our system, who has the direct power to hire and fire a Prime Minister.
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But here we have another problem.
The Queen may have that power in theory – but Buckingham Palace would be reluctant to intervene in a politically controversial situation, such as a stand-off between the Prime Minister and his political party.
As this blog recently set out, there are the so-called Lascelles Principles, which are supposed to govern how the Crown would deal with, say, a request for a general election.
But the possible stand-off is not quite the same.
And – and this must be emphasised – the Australia crisis of 1975 still sends shudders through the walls of Buckingham Palace and it is uppermost in the collective memory of those who work there.
Again, there would be an attempt to have a quiet word – just as the chairman of the 1922 Committee will have tried.
But what if Johnson says no to the Queen?
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Well.
We would be at the end of that particular constitutional road and the Queen will have to make the decision to invite someone else to form the government.
She would have to sack Boris Johnson, because she is the only one who can.
Of course, this is not what anyone would want, especially in her jubilee year and with her ill health.
But the constitution of the United Kingdom would offer no other choice.
For, however powerful the office of Prime Minister is, there is still something (theoretically) stronger: the power of the Crown.
And, as this blog has averred before: one useful function of the Crown is not so much in respect of the powers it does have, but the powers it prevents others from having – or exercising.
If the Queen did invite another to form the government, there would be nothing Johnson could do legally or constitutionally.
Indeed, there would be nothing for him to do – he would not need to actively resign.
One moment he would be Prime Minister, and the next moment he would not be.
The premiership would be stripped from him by automatic operation of the royal prerogative.
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Of course, one would hope that Johnson would concede before that point.
But in the United States, his fellow populist Donald Trump has never conceded – and he chose to be away from the White House on the day of inauguration rather than be marched out of it as a trespasser.
Who knows what would happen in practice – whether the matter would get to the Queen or not.
It would certainly be constitutionally exciting.
Brace, brace.
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