After a Jubilee weekend celebrating the 70-year reign of our constitutional figurehead, thoughts turned to our actual governing figurehead and whether he can hang on to the job he won, with an 80-seat majority in the House of Commons, 30 months ago.
Last night 41% of Conservative MPs affirmed their lack of confidence in his leadership. Had this reached over 50%, there would have been an election for a new Conservative leader - but then what?
Unnoticed in public discussion, the Dissolution and Calling of Parliament Act 2022 passed into law on March 24th. It repeals the 2011 Fixed term Parliaments Act, which protected the then Coalition government against the risk of losing support from either partner in the Commons.
The 2022 Act abolishes the 2011 arrangements and restores to the sitting Prime Minister (PM) discretion to use the ‘royal prerogative’ to call an election before the end of five year term of a Parliament. The law also says this cannot be challenged in the courts.
The government claims in its ‘explanatory note’ that the 2022 legislation simply restores a longstanding, ‘tried and tested’ constitutional convention. However, its note makes no mention of one part of this convention: that a Prime Minister resigns on failing to maintain the confidence of the House of Commons. This convention was tested to destruction during the 2017-2019 Parliament, when the Commons failed to find a way to carry on government when neither Ms May nor her successor Mr Johnson held a viable majority, but lacked enough votes to force an election under the 2011 arrangements. Hence the justification for the 2022 Act, supposedly restoring the pre-2011 position.
So where now is the understanding that the PM must keep the confidence of the Commons? It now remains only in one form: that the leader of the largest party takes the office of PM. If, after a general election, one party has an overall majority then its leader is invited by the monarch to form a government. If there is no such majority, then the previous PM remains in office until a new leader has a majority. If the party led by the PM decides to change it leader, then the expectation would be that the previous PM resigns and the Palace summons the new leader. However there is no legislation to this effect. If Boris Johnson were in fact replaced as Conservative party leader during the present Parliament, would he resign as PM?
Cabinet Minister Jacob Rees-Mogg (left) thinks there would have to be an election. He says the current constitution is de facto Presidential and therefore the mandate for the PM comes directly from the people and not from the Commons.
So let's think about this scenario for a moment. If the Conservative party replaces him as leader, Mr Johnson could refuse to resign immediately. Instead, he calls an election - and says he will resign only when, after that election, a new leader has a fresh majority in the Commons. The only person who could insist on an earlier resignation would be the Monarch - risking drawing the Palace into politics, itself a violation of constitutional convention.
I am not suggesting that this will happen – only that it is a plausible speculation, based on the current situation of the constitution.
We seem to accept that the constitution is something pretty much made up on the spot to suit the convenience of the current Prime Minister, be that Cameron in 2011 or Johnson after 2019. This must end, sooner or later, in many tears.
The last time a Conservative majority struggled to accept its own choice as Prime Minister, I offered my thoughts on a constitutional settlement. I think they still apply.