For Whom The Bell Tolls: Prime-ministerial Resignation and the Political Constitution
by Michael Foran - posted on 8 July 2022
Less than three years ago, Boris Johnson led his party to their largest election victory since 1987. Today, his premiership is in ruins, his party has abandoned him, and he has resigned in disgrace. So much has happened in the intervening period to cause this that it is scarcely worth repeating. In a sense, at least from the perspective of constitutional lawyers, the details don’t matter. What has happened is what has always happened: the Prime Minister has lost the support needed to govern and, after a (in this case, markedly more strained) moment of denial, has been dragged kicking and screaming to the inevitable realisation that the current position is untenable and resignation is the only option.
In one sense, this is entirely constitutionally orthodox. In another, it shows that the distinctive political mechanisms at play here are largely unavoidable, even if a constitutional crisis seems imminent. Indeed, the fact that there were no legal options open, save embroiling the Crown in this mess, is likely to have secured a resignation that would never have come had they been available. In this system, no amount of clever reasoning or argumentation can save a Prime Minister from the inevitable falling of the axe once their support has evaporated. The political aspects of the United Kingdom’s constitution are often said to be founded on the belief that politicians are good chaps. In reality, this constitution, at least when it comes to issues of survival, is based on the maintenance of confidence. Once that is gone, so are you.
Much can be made about what could or should have happened had Boris Johnson refused to resign. The reality is, just like all those who have been in his position in the past, he did. He did so because he had no choice but to. In a constitutional system such as the United Kingdom’s, he had no other mechanism to cling to; no impeachment hearing to prepare for, no legal challenge or judicial review to engage with, and no presidential powers to abuse. He ran out of road. Introducing legal mechanisms of control into this process is in no way guaranteed to secure the removal of a Prime Minister hell-bent on exhausting any and all avenues before they go. In fact, they are likely to distract from, or worse, impede the political process of removal. The last thing we want when an entire party is united against its leader is a debate about whether he is mentally cognisant or unfit for public office.
Johnson’s premiership has been characterised by scandal and moral decay. Until recently, he has managed to cling to the vain hope that his character was factored in to the political decision of his party and the electorate: he continues to maintain public support and his party continue to maintain their support for him. But the issue with making a deal with the devil is eventually you realise that you’ve made a deal with the devil. At a certain point, enough members of his party had lost confidence in his leadership such that a vote of no confidence was called.
In the United Kingdom, there are two ways to remove a sitting Prime Minister, both involving votes of no-confidence: either their party removes them as leader, or the House of Commons removes the government and triggers a general election. Each party has their own internal rules on the selection and removal of their leader. The Conservatives adopted their current system in 1998. Before this, the only way for the party to remove a sitting leader was to organise a leadership challenge, as Michael Heseltine did against Margaret Thatcher in 1990. Now, a challenger need not emerge for a sitting Prime Minister to fall. What is needed is a vote of no confidence among Conservative MPs, triggered by 15% of them requesting one by writing to the chairman of the backbench 1922 committee and signalling that they no longer have confidence in the Prime Minister’s leadership.
This change in rules means that challenges can be more disorganised and can occur where there is no obvious alternative forthcoming. Coupled with the relatively low threshold to trigger the vote, this means that the Conservatives were far more likely to find themselves in the mess that we have witnessed over the last few weeks: an unplanned vote of no confidence which the Prime Minister wins but not by enough to secure his position. According to the rules of the party, Johnson should have been safe from a second confidence vote for another year. This means that the only way to remove him would be for the House of Commons to vote no confidence in the government or for the party to force his hand and get him to resign. But what happens if the party tries to do that and the Prime Minister refuses to go?
A Constitutional Crisis?
The constitutional principles governing this situation are perfectly obvious. They may not be codified into a single document but they are accepted and well known: the Prime Minister occupies that position because they can command the confidence of the House of Commons. In a party-based system, that means they will either be the leader of the party with the largest share of seats in the Commons or they will be supported by other parties in a coalition. If the Prime Minister no longer has the confidence of his party, he can no longer command the confidence of the House of Commons and so by convention must resign.
The potential crisis here is one which begins with internal party politics. Johnson formally had the confidence of his party. Unless the rules were changed, no vote to second-guess that could be called for another year. The problem here is that by the middle of this week it had become glaringly obvious that, despite the formal vote a few weeks prior, Johnson did not in reality command the confidence of his party nor, by extension, the House. It seems clear that the party would have changed their rules to allow another vote of no confidence if Johnson had refused to go. So the potential constitutional crisis emerges if Johnson had refused to follow constitutional convention and resign.
Make no mistake though, the vote of no confidence was coming. If it didn’t come from his party it was going to come from the House of Commons. Once that is in place, Johnson could have refused to go but he could simply have been ignored. This is because the power to establish and dissolve governments does not rest with him. It rests with the Queen. If it was undeniable that Johnson no longer held the confidence of the House, the Monarch is constitutionally authorised, and indeed obligated, to dismiss him as Prime Minister. He could no longer govern in her name, at which point it is incumbent upon the Queen to find someone who can and to dissolve Parliament and seek a general election if she cannot. Even if Johnson agreed to go, if Parliament is not happy with him remaining Prime Minister while his party finds a new leader, it can vote no confidence in the government and trigger an election themselves. Indeed, the opposition leader, Keir Starmer, has announced that this may be exactly what happens (as reported in The Telegraph).
There are clear constitutional principles governing this situation, even in these unlikely circumstances. If Johnson had refused to go, he would have been removed. The issue here – if there is one – is the lag between it becoming evident that he no longer had the confidence of his party/the House and the consequence of that actualising. That is not a constitutional crisis. If it is, it is one that any constitutional system might face and it is easily resolved in our system. In fact, it may be easier to resolve here than under a system with more legal rules in play.
Would a Written Constitution Have Changed Things?
It is difficult to see how the UK constitution failed in this situation. The Prime Minister rapidly lost the support of his party and within two days had resigned. This was in spite of him having won formal and express confidence from his MPs mere weeks prior. The charge that this was a constitutional crisis is premised upon the, admittedly not inconceivable, possibility that Johnson would refuse to resign. But if that had happened, he would have been removed, if not by his party, then by the House of Commons.
Would a written constitution have made any difference? Most likely no, but if it did it would have been for the worse. Often when people advocate for a written constitution they are not seeking to simply codify the existing constitutional rules and principles. If that is all we mean, then having the rule that the Prime Minister must command the confidence of the House lest he be removed by the Monarch codified in text would have made no difference at all. If, instead, there had been alternative legal mechanism enshrined into a constitutional document to change or add to the confidence principle, in my view this would have hampered the quick and ruthless removal of Boris Johnson that we have witnessed over the last few days.
As it stands, there are two tests for the removal of a Prime Minister: either he loses the confidence of his party or he loses the confidence of the House of Commons. The remedy or solution for this loss of confidence is in some ways up to the Prime Minister but the outcome is the same: he can choose to resign or to be forced out. If he loses confidence, he loses his job.
If, however, there were other tests in play to remove a Prime Minister – say a mechanism which would allow the cabinet to oust him if conditions were met in relation to his mental cognisance or fitness for office – then we could quickly become distracted from the central point that this man has no support and become embroiled in legalistic intricacies which ultimately do not matter. A cabinet or party which is united in its conviction that the current leader needs to go may be fiercely divided over whether to invoke a formal provision such as the 25th amendment to the U.S. Constitution because they are divided on whether he is actually unable to discharge the duties of office.
Worse, we may see a cabinet use this provision in precisely the kind of situation Johnson found himself in: where the Prime Minister is perfectly stable but simply unpopular. For these kinds of matters, dealing with the survival of a Prime Minister, the last thing we want is a drawn out impeachment hearing centred around pseudo-legalistic charges which act as a smokescreen for the political reality and which give a Prime Minister who has no support a formal mechanism to cling to in the hopes of weathering the storm.
There is no chance that a legal method of removal could be as efficient or determinative as what has just occurred with Boris Johnson. If there was some alternative mechanism that was more formal in character, it would either be left in the hands of political actors such as Parliament, the party, or the cabinet – in which case it is really a political solution anyway – or it will be left in the hands of the Court. Situations such as this should be entirely political in their resolution. There is no credible justification for courts to embroil themselves in a situation where Parliament, or indeed a party, remains capable of removing a Prime Minister who no longer commands confidence. Those claiming that this shows us why the U.K. needs a written constitution are on the verge of selling snake oil. A written constitution will not miraculously solve every political issue a constitution faces. This was a political problem and it required a political solution.
This post first appeared on the Verfassungsblog. Their suggested citation is: Foran, Michael: For Whom The Bell Tolls: Prime-ministerial Resignation and the Political Constitution, VerfBlog, 2022/7/08, https://verfassungsblog.de/for-whom-the-bell-tolls/.