Boris vs. The English Constitution
The British parliamentary system depends far more heavily on adherence to norms and conventions than does the American presidential system, and Boris Johnson’s departure has put them to the test.
Over the past couple of months, Australia, the United States and the United Kingdom have both been considering transitions of office-holders. In the United States, the January 6 committee in the House of Representatives has looked at former President Donald Trump’s efforts to manipulate the U.S. Constitution to remain in office despite his loss of the 2020 presidential election to now-President Joe Biden, and the United Kingdom has dealt with the imminent departure of Prime Minister Boris Johnson. The way in which presidents and prime ministers leave office is different, of course. In a presidential system, a president departs the office automatically, at the end of the fixed term at noon on the January 20 following the election. The president does not take any formal action to relinquish the office. A prime minister, on the other hand, is not formally elected and serves in an open-ended way. The prime minister holds the office until resignation or dismissal by the monarch, and must hold the confidence of the House of Commons in order to continue. Even an election loss does not remove the prime minister in a self-executory way. Rather, a defeated prime minister must inform the monarch of the resignation, and advise the appointment of a successor. In Australia Scott Morrison resigned on May 22, just two days after an election whose results were still being compiled. His Liberal-National coalition would clearly not be able to assemble a governing majority, and Morrison stated that incoming Prime Minister Anthony Albanese should have the full authority of the office to participate in an international summit scheduled four days after the election, rather than Australia being represented by a caretaker leader.
Prime ministers surely do not enjoy resigning, since few do it willingly and it is a humbling experience. Those whose parties lose elections need to acknowledge the loss openly and recommend the appointment of their chief opponent to the office. It is no doubt worse for those who step down because they have lost the leadership of their party mid-term, and the extended tea with the Queen following the resignation is probably not much of a salve. When Tony Abbott lost the leadership of the Liberal Party of Australia in September 2015, he reportedly did so by a faxed letter to Governor General Peter Cosgrove, instead of following the tradition of resigning in person with the successor waiting in the next room. One month later, Canadian Prime Minister Stephen Harper resigned privately, before Justin Trudeau’s incoming government assumed office.
Nevertheless, these reluctant ex-prime ministers-to-be all bit the bullet. Trump did not have to resign to permit Biden to assume office, and is unlikely to have done so in any case. (He did, however, vacate the premises of the White House, despite rumors that he would refuse.) In the United Kingdom, the ultimate recourse for dealing with a “squatting” prime minister who refuses to leave office would be the extraordinary royal power of dismissal (not used in the United Kingdom since 1834, once in Australia in 1975, and arguably once in Canada, depending on one’s view of the King-Byng incident in 1926). which would first require the Commons to vote no-confidence in the government.
The United Kingdom’s constitution is famously unwritten, and the conventions on the prime minister and cabinet formation are not codified by now, although there is a “Cabinet Manual” that lists these conventions as Whitehall insiders understand them. The rules, however, become mukly when a government changes prime ministers mid-term, which will happen when the governing party changes its leader. As we saw in Johnson’s case, as well as those of David Cameron and Theresa May before him, party leaders do not go willingly, and are typically removed after a successful party revolt that will have taken some time to build. Usually the leader is not removed on the first formal attempt, though the attempt makes the subsequent removal likely. That removal (except in Australia) takes the form of a voluntary resignation, even if an obtuse one like Johnson’s, as he only resigned as Conservative leader (without using the word) and merely signaled an intent to resign as prime minister in the future. Some insiders told reporters that “he doesn’t understand what saying he’s resigning means” and former adviser Dominic Cummings said “he doesn’t think this is over” and does not intend to relinquish the office.
In other words, all of this depends on the participants following norms that are not codified and not legally enforceable, in contrast to the certified electoral college vote that stood behind Biden’s inauguration (and that Trump was desperate to stop). But what would have happened had Johnson refused to cooperate with his removal as Conservative leader and prime minister? Dismissal by the Queen would only be the last resort, and would have taken some time. Johnson’s view of power is presidential, and in public remarks in the days before he announced his intent to resign, he claimed that he received a direct mandate from the electorate in the 2019 election, and that the mandate was to serve for a full parliamentary term. Unlike in other Westminster system countries, especially Canada, where many treat the prime minister as having been elected by the country, British observers quickly retorted that Johnson’s government is in place because the Conservatives hold 358 of the 650 seats (55%) in the House of Commons, and that majority ensures that the government holds the confidence of the House.
Parliament may withdraw confidence in the government, leading either to the formation of a new government or a dissolution and a general election (the Fixed Term Parliaments Act, passed in 2011 and repealed in March of this year, would have made calling a fresh election more complicated). This only happens in “hung parliaments,” where opposition parties can unite to outvote the government. There is a blank spot in the conventions when a prime minister is dropped as his party leader but refuses to resign the premiership. The only method to force his hand is for the government’s own members to vote no confidence, which is unthinkable (we will see that this week when the Labour opposition tries to bring down the caretaker government). Short of that, methods within the governing party must be used, which would take the form of cabinet resignations (we saw more than 50 before Johnson agreed to go) and internal confidence votes (not successful in Johnson’s case) to remove the leader without a resignation.
The nightmare case would draw the Queen into partisan politics. During all this controversy, the prime minister remains in office, and continues to tender constitutional advice to the monarch that she must generally follow when exercising the royal prerogative. With the repeal of the PTFA, this includes advice to dissolve Parliament and call an election, which could conceivably short-circuit the party leadership contest and allow Johnson to claim a renewed personal mandate as prime minister. The refusal of a dissolution is one area where the monarch has slight leeway to refuse constitutional advice, and the Lascelles Principles, first stated in 1950, permit the refusal of a dissolution request when an alternative government exists in the House. A similar convention exists in Canada, where provincial lieutenant governors have refused dissolution requests from premiers who were about to be unseated. If the monarch rejects their advice, the prime minister must resign by convention. If the prime minister refuses, the monarch may finally dismiss him.
There is speculation that Palace staff quietly sent word to Number 10 that Johnson risked the Lascelles Principles being invoked if he tried to head off his resignation by calling an election, as another Conservative leader would presumably hold the confidence of the Commons. At this point, Johnson backed off and asked his party to begin electing a new leader.
The British parliamentary system depends far more heavily on adherence to norms and conventions than does the American presidential system, and Boris Johnson’s departure has put them to the test, as he shares Donald Trump’s disdain for norms and willingness to test a system by ignoring them. The system appears to have held, helped along by its ability to remove a prime minister mid-term without the need for impeachment. The Conservative Party was willing to jettison a leader who became an electoral liability, and other front-benches with leadership ambitions of their own used the opportunity to force a leadership race. (Johnson’s hold on the Conservative membership was rooted solely in winning the 2019 majority, and never went as deep as the grip Trump maintains over the Republicans.) It is an encouraging sign that the conventions held against a prime minister inclined to ignore them.
References:
https://www.ft.com/content/2d8aee46-e42f-11e9-9743-db5a370481bc
https://www.gov.uk/government/publications/cabinet-manual
https://www.newsweek.com/if-trump-refuses-leave-white-house-secret-service-escort-1545612
https://www.sbs.com.au/news/article/tony-abbott-resigned-as-prime-minister-by-fax/3p262cs2o
