The incredible and almost unprecedent series of resignations from the Cabinet may have sounded alarming; but – beneath the surface – the system worked. I also think that even if the PM had decided not to resign, then our essentially political constitution with its conventions would have counteracted the crisis.
History and law of the Prime Ministership
The office of the Prime Minister has evolved by convention – as opposed to legal doctrine – and is almost entirely uncodified. The Prime Minister, formerly the First Lord of the Treasury, harks back to the early 18th century with Sir Robert Walpole (1721—42). By tradition, the Second Lord of the Treasury was the Chancellor of the Exchequer. The modern rise of 'political parties' – as well as developments in the nineteenth century vis-a-vis the Crown and political conventions – solidified the need for such an office as a necessary feature of our constitution.
The office of the Prime Minister did not arise from any specific statutory footing. The jurist A.V. Dicey first coined the expression "constitutional convention" to describe the democratic principles of the British constitution. Dicey explained that these conventions had fashioned constitutional democratic commitments by the Crown (what he called the "constitutional morality") that elevated "the ultimate supremacy of the electorate as the true political sovereign of the state". John Stuart Mill also identified these unwritten "maxims" of the constitution.
In modern times, the power to appoint a Prime Minster is governed by the constitutional convention of the Crown's prerogative in appointing the individual commanding the confidence of the lower house of Parliament. In other words, the leader of the party with an overall majority in the Commons. (Interestingly, while the current convention dictates that the Prime Minister needs to be a member of the House of Commons; in 1963, Sir Alec Douglas-Home was invited to the Prime Ministership – to succeed Harold Macmillan – from the House of Lords.)
In terms of the Queen's influence, Her Majesty's role – as Walter Bagehot described it – is "to advice, encourage and to warn" her Prime Minister in her weekly audiences. In truth, the Prime Minister leads the Cabinet whose Ministers the Crown appoints on the advice, and at the request, of the Prime Minister.
While the PM is primus inter pares in the Cabinet, that power is conditional on the continuing support of Cabinet colleagues and members of the party. The resignation of Rishi Sunak, former Chancellor of The Exchequer, is reminiscent of the resignation of Geoffrey Howe which ultimately drew the resignation of Margaret Thatcher (the UK's longest-serving Prime Minister since World War II). Afterwards, the issue of the new premier is the focus of the internal party apparatus and leadership procedures of the party with the electoral mandate.
The conventions work
In The Times, Lord Sumption wrote that:
Last Thursday's events marked the triumph of constitutional conventions. The civil service measured up to its reputation for honesty and impartiality; Parliament showed that even party discipline and a large majority will not protect a PM who defies the standards on which our politics depends. Johnson trampled on the conventions of his office. The political cost was high. He lost his job. That is how conventions are supposed to work.
I agree. In a nutshell, Boris Johnson pushed the conventions to their limit and was defeated. Amid the recent political bloodshed, my view is that the UK's unwritten constitution – with its political shape and form – has proven itself durable and sturdy.
There is some degree of uncertainty in the convention regarding whether the incumbent Prime Minister may remain in office until it becomes clear that a successor will be able to command the confidence of the party (or parliament, in the case of an election). The Cabinet Manual 2011 (para 2.10) states:
The application of these principles depends on the specific circumstances and it remains a matter for the Prime Minister, as the Sovereign's principal adviser, to judge the appropriate time at which to resign, either from their individual position as Prime Minister or on behalf of the government. Recent examples suggest that previous Prime Ministers have not offered their resignations until there was a situation in which clear advice could be given to the Sovereign on who should be asked to form a government. It remains to be seen whether or not these examples will be regarded in future as having established a constitutional convention.
To my mind, it would be preferable to tender a formal resignation when the alternative premier has been settled by the party.
The Queen's "reserve powers"
As already explained, the Crown generally acts on the advice of the Prime Minister. The royal prerogatives are largely exercised directly through ministers of the Crown. However, the Queen still exercises some prerogative powers herself which are at her discretion. These are known as the Crown's "reserve powers" ("personal prerogatives" as per Sir lvor Jennings).
Below I quote two different sources which suggest that the Queen could under extraordinary circumstances exercise the reserve powers against the government of the day.
According to the Cabinet Manual:
Historically, the Sovereign has made use of reserve powers to dismiss a Prime Minister or to make a personal choice of successor, although this was last used in 1834 and was regarded as having undermined the Sovereign. 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. (Emphasis mine)
Prof Anne Twomey:
The existence of those reserve powers, nonetheless, remains essential to the effectiveness of the sovereign's personal influence. Today it is less the sovereign's social superiority that is likely to trouble a prime minister's mind than the sovereign's underlying constitutional power and the public's support for the sovereign, which is often much greater than that of the prime minister ... While the cardinal convention requires the sovereign and her vice-regal representatives to act upon the advice of responsible ministers, other than when exercising a reserve power, there is a degree of latitude in determining when the advice of ministers is final and must be obeyed ... The difficulty lies in ascertaining the point at which the sovereign must give way and how far he or she may go in terms of the initial refusal to act upon advice. (Source: From Bagehot to Brexit: The Monarch's Rights to be Consulted, to Encourage and to Warn)
It seems to me that the Crown's autonomous use of the reserve powers (which include the appointment and dismissal of Prime Ministers) is contingent on two factors: namely, the existence of an exceptional political crisis justifying the Crown's refusal to act on the advice of the Prime Minister, and a public consensus in favour of the Crown's intervention.
For example, today, it seems that the government is giving Parliament a vote on whether MPs have confidence in the government (BBC News). If the Prime Minister had lost that vote of confidence but refused to tender his resignation (and continued to inhabit Downing Street), then it seems to me that the Queen, under her reserve powers, could actually intercede and dismiss her Prime Minister. The Crown's constitutional weight and authority would eclipse the government. Moreover, that exercise of power would probably strengthen the future of the monarchy.
This would be preferable to a system which, perhaps like America, would involve the courts issuing an injunction demanding the resignation of the PM and/or ordering the Queen to make an alternative appointment. Our constitution is political in character: not legal.
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