These constitutional realities will determine whether Johnson survives as PMby George Peretz / August 8, 2019 / Leave a comment
When and how can the House of Commons sack a government? That is the question lying behind the not always well-informed debate about whether, in the last resort, the Commons might enforce its will to avoid a no-deal Brexit, dismissing a government that seems to have locked itself into that outcome and thrown away the key. In trying to understand the UK constitution’s answer, it is helpful to have four principles in mind.
1. There must always be a prime minister: the Queen’s government must be carried on. That means that a PM not only need not, but cannot, resign unless a successor willing to take office and capable of surviving can be appointed. (Here that means that the new PM will be able to win, at least for the moment, a vote of confidence in the House of Commons.) As to how it is established whether a putative government is capable of surviving, there are various ways in which that could be made clear, ranging from passing a formal Commons motion asking the Queen to invite X to be PM, to a letter to the same effect to the Times signed by 326 MPs.
2. The Queen must not be required to take a controversial decision. This is a very strong political convention: and it probably distinguishes the UK from other Commonwealth countries where the Queen is nominally Head of State but where her role is in fact discharged by a governor general. Governors general are typically ex-politicians, and the idea that they might take a controversial decision is not outrageous—indeed several have done so (an example is given in 4 below). The Queen, after 67 years of not putting a constitutional foot wrong, and commanding stratospheric levels of public esteem, is different.
3. The government must leave office if it loses a vote of no confidence or equivalent (such as losing a Budget or vote on a Queen’s Speech). It is important to note that that is qualified by the first principle: if there is no alternative PM available or willing to take office, the government must stay on until either it obtains confidence or an alternative PM emerges. So when Callaghan lost a vote of confidence in 1979, it was right for him not to resign but rather to advise the Queen to dissolve parliament: there was no alternative government that could have survived and the consensus was that there should be an election. But, as those who remember the chapter in Trollope’s Barchester Towers in which at a plot-critical moment one ministry falls and is replaced by another will know, there were frequent 19th century examples where a government lost a confidence vote but was replaced by another without an election. That was because, in those cases, an alternative government could be formed which could expect to survive a vote of confidence. The congealing of our politics into a rigid two-party system over the 20th century has meant that there are no recent examples of a Commons vote leading to a change of governing parties without an election: but principles survive even though occasions to apply them have not recently arisen.
4. The Queen has power to dismiss a PM even if he/she refuses to resign. This power was last used in the UK in 1834 by William IV (to dismiss Lord Melbourne). But there is no reason to suppose it has disappeared (the Australian governor general used it, very controversially, in 1975). It is though hard to imagine a case where it would be used given, in particular, the second principle.
Note that these principles (apart from the fourth) are not legal rules, in the sense that they are enforceable in court. The first principle is really a matter of necessity. The second and third are conventions that can be discerned from the operation of the UK constitution over the last couple of centuries. But they are (probably) not legally enforceable through the courts. The Queen could as a last resort use her power to dismiss to enforce the third principle—but the second principle means that she would be unlikely ever to have to do so.
Besides those principles, if you want to understand the constitutional background to the current crisis you also need to understand the Fixed-term Parliaments Act (FTPA). What the FTPA does is to remove the Queen’s (in effect the PM’s) power to dissolve parliament before the fifth anniversary of the previous election, and to provide that an election is to be held earlier than that in only two cases. The first case is when two-thirds of MPs vote for one (which is how the 2017 election came to be held). But the second case is more relevant for our purposes: it is when (a) the government loses a vote of no confidence worded in a particular way—“This House has no confidence in Her Majesty’s Government” (I will call this “an FTPA NC motion”)—and (b) within the next 14 days no further motion is passed which says that “This House has confidence in Her Majesty’s Government.”
How does the FTPA alter the principles set out above? The general, and in my opinion much better, view is that it does not alter them. Perhaps most obviously, as the Public Administration Select Committee correctly reported a few years ago, there is (despite some rather confused evidence given to it by government ministers) nothing in the language or context of the FTPA to suggest that parliament intended it to alter the principle that a government has to resign—subject to the first principle—if it loses a vote of confidence (or Budget or Queen’s speech), whether or not the vote is an FTPA NC motion. (Such a motion might be, for example, that “This House has no confidence in Her Majesty’s Government’s policy in relation to the EU.”)
The difficulty in the case of a non-FTPA no confidence motion is that—if no alternative government capable of surviving can be formed—the option of an election is not open. But, in practice, in such a situation either an FTPA NC motion would be passed—setting in train the process leading to an election—or the government would recover confidence (for example, by abandoning the policy that had got it into trouble).
Further, even if an FTPA NC is passed, there is no reason to suppose that the third principle above has ceased to apply, i.e. that the FTPA alters the convention that a PM who has lost a no confidence motion must resign if there is an alternative government capable of surviving. Indeed, the situation in which a government might lose a confidence vote but another government could be formed out of a different constellation of parties was very much on the table—at least arithmetically—in the parliament during which the FTPA was passed.
From all this, we can pull together some conclusions about how the Johnson government might be ejected from office.
– If Johnson loses a non-FTPA vote of confidence, and if an alternative government led by X is capable of surviving, he must resign (third principle). Not resigning would also breach the second principle, as it would require the Queen to decide whether to dismiss him (if he resigned, she would, non-controversially, appoint X as PM).
– If he loses an FTPA NC motion, there are 14 days in which to see if either he can regain confidence or if an alternative government led by X is capable of surviving. In the latter case, he must resign (see the previous bullet point). If neither happens, there is a general election with a date set by Johnson.
– As there are doubts about whether Johnson would be prepared to respect the convention—and democratic principle—that during an election period, governments do not take decisions that pre-empt the choice to be made by voters, it would be possible in the 14-day period for a key group of MPs to make it clear to him that unless he agreed to seek an Article 50 extension, or to set an election date before Halloween, they would support an alternative government. That would prevent Johnson running down the Article 50 timer and pushing Britain off the no-deal cliff edge before the voters could stop him.
Whether an alternative government capable of surviving could be formed is of course a deeply political question. And one that is beyond the scope of this article. But the constitutional position is that if one can be found, then the Commons can force Johnson to resign and replace him with someone else in time to stop a no-deal Brexit.