COVID-19. Constitutional uncertainty in the UK

14 April 2020

Following the UK Prime Minister’s recent admission to an intensive care unit, once again the complex and uncodified British constitution is under close examination. In tracing the extent and availability of the powers of the Prime Minister, it is helpful – as with many difficult constitutional questions – to look at the origins of power. The foundations of the British constitution derive from various sources including the following: parliamentary sovereignty; statutes with constitutional law consequences passed by parliament; common law developed by the judiciary; unwritten constitutional conventions and procedures; and recognised authoritative texts such as Bagehot, Erskine May, and Dicey.

Faced with his temporary indisposition, Prime Minister Johnson indicated that the First Secretary of State and Foreign Minister Dominic Raab should take charge in his absence. This makes pragmatic sense and many authors have supported the view that the Prime Minister’s indication alone is sufficient to vest his powers in the person he indicated. However, the matter is rather more complicated.

The primordial doctrine of the sovereignty of parliament ensures unquestionably that the ultimate authority in the land resides with the majority will of the UK parliament. Once the will of parliament supports a designated leader, it is able to recommend to the monarch that that person is appointed as Prime Minister - along with the full executive authority that accompanies the office. The monarch is obliged by convention to grant the wish of parliament. One of the first executive acts made by a new Prime Minister is to appoint parliamentarians as ministers of state and members of the cabinet. Convention also indicates that the power to appoint and dismiss ministers is at the discretion of the Prime Minister. The import of this is that strictly speaking, only the monarch has the power to appoint a new Prime Minister and through that office, the entire cabinet. The Prime Minister, it seems can not appoint his or her own successor, even temporarily.

It is notable that the Prime Minister has not sought to delegate his power to appoint and dismiss ministers and members of the cabinet. Likewise, the weekly consultation meetings between the Queen and the Prime Minister already complicated by confinement measures, have been temporarily suspended, and are not being exercised by the Secretary of State in substitution. This could change however if the situation persists, so as to ensure that the Monarch’s centuries-old prerogative rights of information and opinion – as reflected in Bagehot - are preserved.

Precedents in recent history are not particularly helpful. In 1953, Churchill suffered a stroke and was - at least for a short while - though unlikely to survive, whilst in the early 2000s Prime Minister Blair had to undergo medical intervention, although in both cases, the relevant periods of incapacity were not made public and the circumstances of those particular times in history allowed the incidents to pass largely unnoticed at the time.

Another widely recognised convention of governmental power in the UK is that the responsibility of government is collective – that is to say it belongs to the cabinet as a whole – not merely the Prime Minister. Ministers must publicly support the position and policies of the government, even if they privately disagree, thereby taking collective responsibility for all the government’s decisions. Publicly disagreeing with stated government policy is therefore largely incompatible with the holding of the office of minister or member of the cabinet. Bearing in mind the Prime Minister’s largely unfettered discretional power to dismiss ministers, those who transgress in this way on important policy matters are almost invariably excised from government. Historical examples are too numerous to list, but include the 1986 resignation of Michael Heseltine from the Thatcher administration over the publicly disputed rescue bids for the defence manufacturer, Westland Helicopters.

The fact that the cabinet takes collective responsibility for its decisions, does nevertheless offer a certain degree of flexibility when the Prime Minister does not have a particular view, or is not available to express the same. In this way the cabinet can agree to ratify the Prime Minister’s designation of the First Secretary of State as his substitute as a pragmatic ad hoc solution in a critical moment when the decision making capacity of the government in real time is of such vital importance. The role of “caretaker Prime Minister” could reasonably be adopted in the circumstances (and would be unlikely to be seriously challenged), but it does not avoid the problem that such an appointment would be constitutionally ultra vires if made without the direct intervention of the monarch.

If necessary and in the interests of speed, possible solutions could include the cabinet designating a proposed “Caretaker Prime Minister” during the period of absence, whilst advising the monarch to make the corresponding temporary appointment. In the event that the Prime Minister were not able to return to government, this could also be done, whilst holding elections within the governing majority Conservative party to appoint a successor party leader who could be put forward to the monarch, supported by a majority of the House of Commons. Such elections however, governed by the chairman of the executive committee of the Conservative Party’s 1922 committee, Sir Graham Brady, would foreseeably take around three months to carry out.

One of the overriding advantages of not having a codified written constitution - and why the same has not been introduced despite centuries of postulation - is precisely the flexibility that it affords, allowing it to adapt to circumstances as they change, often rapidly, throughout history. Should the need arise, there is little doubt that the monarch would, upon receipt of a suitable recommendation from cabinet or parliament, act swiftly to protect the best interests of the country.