After the fall: governing the UK in the post-May era

by Dr Andrew Blick
Senior Lecturer in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust

13th June 2019

By the end of July, at the latest, the Conservative Party will have a new leader. That person, it is widely assumed, will also be the Prime Minister of the United Kingdom (UK). Who they are and the terms on which they ascend to and exercise their office will have substantial consequences for the future of the UK and its relationship with the European Union (EU). The following paper considers the form which that leadership is likely to take and the implications from the perspective of Brexit. It then asks what constraints that new office-holder will be subject to. It considers the extent to which Parliament will be able to impose itself upon the government and achieve a different approach towards the EU, if it wishes. Finally, it discusses other means by which those within Parliament and beyond might try to alter the course taken by the UK under the successor to May.

May’s departure

The most puzzling feature of the announcement on 24 May by Theresa May of her intention to vacate the party leadership and by extension the UK premiership was that it did not come sooner. One of her numerous parliamentary defeats, for instance, might have been an appropriate moment to recognise the inevitable. It is worth considering the immediate causes of acceptance by May that it was time to create a firm timetable for a process leading to her exit.

First, it had become apparent that yet another effort to secure the agreement of the House of Commons to the exit deal agreed with the EU could not succeed.

Second, May faced a calamitous performance at the European parliamentary elections, which had taken place precisely because of previous failures to secure departure from the EU. The Conservative Party suffered its worst results ever in a UK-wide election (prefigured by less cataclysmic but nonetheless disastrous local authority elections). There was a clear connection between the disappearance of its voters and the rise of the newly-formed Brexit Party. This ‘pop-up’ entity, led by the former United Kingdom Independence Party figurehead, Nigel Farage, successfully channelled the frustrations of a section of the public regarding the failure of May to deliver upon the expectations she had wilfully encouraged regarding the possibilities for a swift, absolute and pain-free break with the EU. The factors that finally forced May to end her procrastination, and name a date on which she would resign as party leader, will shape the context in which the succession takes place, and developments thereafter. The departure of May will not create a blank slate. The same forces to which she was subject during her premiership – and which eventually ended it – will continue to operate, and probably intensify, under her successor.

Electing the new leader

There are two electorates involved in determining who that person will be. The first is the Conservative parliamentary party. They are currently voting, in a process that eliminates candidates until either two remain, or all candidates except one have either been defeated or have withdrawn of their own accord. If the former, then the members vote to choose between the two candidates. What factors will influence the outcome, and what will it mean? A majority of Conservative MPs seem to be worried by the idea of leaving the EU without any deal. This disposition might have been expected to make them reluctant to vote for a candidate who argues that leaving on such terms is a viable – or even positive – option. However, given that so many of them find the existing deal unpalatable, or are unwilling to be seen to vote for it, a number have proved willing to find seductive an argument that a leader more obviously willing to countenance ‘no deal’ than May will be able somehow to force substantial concessions from the EU. Accepting such a claim might seem to involve sharing in wishful thinking supported by little in the way of hard evidence, as a means of postponing a difficult decision. As such it would be well within the pattern of behaviour of many MPs in the Conservative Party and elsewhere during the Brexit episode.

Furthermore, Conservative MPs are troubled by the success of the Brexit Party. Significant numbers of them see the politically necessary response to its rise as being a hardening of the Conservative position with regards to the EU. They therefore regard Boris Johnson, who appears to offer this type of platform, as the candidate best placed to appeal to voters who would otherwise vote for the Brexit Party. Such voters might include not only former Conservative supporters, but also some who were previously attached to Labour. Conservative MPs are also well aware that party members tend both to be vehement in their hostility towards the EU and any deal that is likely to be obtained, and more inclined towards Johnson than any other candidate. To deny them the opportunity to vote for a candidate who enjoys support both as a personality and as for his utterances regarding Brexit would be to court immense and damaging controversy within the party at large.

For these reasons, it was always hard to imagine that MPs will present a fait accompli to members, foisting on them a leader whose credentials as a supporter of radical Brexit are dubious. They have felt under pressure both to facilitate a contest in which at least one candidate fits a mould that meets the approval of members. Whatever the precise outcome by the end of July (or perhaps sooner), it seems extremely likely that a candidate will be elected who favours a renegotiation, which is unlikely to succeed, underpinned by a firm and overt willingness to leave with no deal. If such an individual becomes Prime Minister, then departure without an agreement will have become an increasingly likely occurrence, perhaps by the end of October 2019. What are the main blockages that could work to prevent this outcome?

Constitutional constraints

It is worth considering some constitutional niceties involving the appointment (and departure) of prime ministers. They are governed to a significant extent by conventions, which are notoriously difficult to define. But in precise legal terms, the hiring and firing of premiers is a personal prerogative vested in the monarch. In practice, the Palace is deeply reluctant to become involved in exercising any discretion in these matters, for fear of being exposed to damaging political controversy. Generally, changeovers in Prime Minister are relatively straightforward. It normally happens in one of two ways. The first takes place immediately after a General Election when the party of the sitting premier has lost their Commons majority, and a successor of a different party is clearly able to command such a majority. Another occurs when an incumbent Prime Minister whose party has a Commons majority stands down to make way for someone who that same party has chosen to be their leader.

Currently, however, the Conservative Party does not have a majority of its own in the Commons for the new leader to inherit. Furthermore, the winner of the present contest may well extremely objectionable to a significant number of MPs within the Conservative parliamentary cohort. What would happen in such circumstances? Should May stand down even though it is not clear that her successor as Conservative leader would be able to command the confidence of the Commons (itself a difficult to define concept)? Might she feel reluctant to hand over to a Prime Minister who struggles from the outset to form a credible government? The position may be complicated further because, as discussed below, some of these events could play out at a time when Parliament is not sitting. Assessments as to precise levels of support will in such circumstances be more speculative. But it is possible that a group of, for instance, 20 or 30 Conservative MPs could make plain that they will not tolerate the new leader and would be willing if necessary to vote for an early General Election under the Fixed-term Parliaments Act 2011 to unseat that individual from the premiership. I will return to this option and its implications below.

But assuming, for the sake of argument, that a new Prime Minister is installed by late July, and is able at least to form and maintain a government for a time, that person could nonetheless struggle to attain the support of Parliament on crucial issues, when needed. If suffering repeated defeats, they might seek to secure a more compliant Parliament through a General Election. May took a similar approach, in what proved to be a serious miscalculation, losing the Conservative Commons majority she had taken on from her predecessor, David Cameron. If the new Prime Minister nonetheless decides they can succeed where May did not, they must first obtain the consent of the Commons for an early General Election under the Fixed-term Parliaments Act 2011. It is not guaranteed that they would secure the support they needed. (Though as we have noted, there is a counter-possibility that the Commons will force an election on the government.)

Positive action may be difficult for the new Prime Minister. But a ‘no-deal’ Brexit at the end of October is the default option; a government does not need to do anything for it to take place. Parliament under May showed itself to be very effective at rendering the government inoperative. Where it was less successful was in actually agreeing upon what should happen, and putting it into effect. Under the new premier, if, as seems to be the case, clear majorities within both Houses of Parliament remain firmly opposed to a no-deal outcome, what could they do to prevent it?

Parliament’s options for preventing a ‘no deal’ Brexit

For long periods between the end of July and October, Parliament will not be sitting, restricting its ability to impose itself. The standard parliamentary timetable, if adhered to, will be that it rises in late July, returning for a week at the beginning of September before party conference season, and meeting again in the second week of October, about three weeks before the projected departure date. Recalls of the House of Commons are arranged by the Speaker, but only on the request of the government. Therefore, a new Prime Minister will potentially be able to avoid meeting Parliament for most of the time between their appointment and the projected point of exit. There is precedent, from September 2002, for MPs in effect forcing the government to concede a recall (over the issue of possible war in Iraq) through arranging their own informal gathering. But ultimately the decision will be a political one that rests with the government. Furthermore, some candidates in the Conservative leadership contest have even proposed seeking a prorogation of Parliament from the monarch, to prevent it from meeting and hampering the government. Since prorogation is a Royal Prerogative, this prospect once again suggests that the monarchy could be drawn into party political controversy. It is a tribute to the potential of Parliament to cause difficulties that such proposals are being floated. But the countenancing of such measures reveals the potential vulnerability of Parliament to executive manipulation in the present divisive atmosphere, against a background of an notably informal, convention-based constitution.

If and when it is in session, what can Parliament do to steer the UK approach to Brexit? Resolutions passed by the House of Commons might have some political significance (perhaps diminished by overuse) but they are not legally binding. Parliament has shown lately that it can, if sufficiently determined, seize control of the institutional timetable and pass a bill notwithstanding government opposition. Parliament might, as it did earlier this year, pass legislation requiring the government to seek yet another extension to Article 50. The recent effort of the Labour Party to prevent a ‘no deal’ departure seemed to rest on this idea. However, achieving another extension would simply create a new deadline, and not resolve the long-term policy issue. The EU might not agree to such a proposal. Some might anticipate such an extension as being accompanied by a renegotiation. But the EU seems to have excluded further discussions of this type (or at least as they pertain to the exit agreement). But even if it were possible to engage in new talks of some kind, the EU cannot negotiate with Parliament. It must deal with a UK government; in this instance, one that would visibly be acting not on its own initiative, but that of Parliament. Such negotiations would lack reality or credibility. For Parliament to legislate to force ministers to conduct complex diplomacy with the EU on parliamentary terms, rather than those of the UK government, is surely beyond the realms of the attainable. The EU would presumably be reluctant to grant an extension on this basis; and if it did, the plan would be flawed.

Parliamentarians might show interest in creating a statute to force the holding of a ‘People’s Vote’. The putative referendum would presumably include ‘remain’ as one of its options. The legislation providing for it would probably need to make a result in this direction binding. It could require the Prime Minister to issue a revocation of Article 50 in this circumstance; and also prevent the subsequent retriggering of the Article without statutory authorisation from Parliament. If it were clear that a government could not simply activate the Brexit process again on a whim, it might be easier to satisfy the legal requirement that unilateral revocations be carried out in good faith. Such an Act might also need to include a requirement to request an extension to Article 50, if it were needed to provide sufficient time for a referendum. Perhaps the remaining EU would be more willing to agree, if there were a prospect of reversing the UK Brexit policy by doing so.

The government’s response

Measures to force a revocation of Article 50 and to stipulate that it could only be triggered again if authorised by Parliament in statute could also be included in a standalone bill if Parliament simply wanted to ensure that the UK remained in the EU, without the need for a referendum. As an approach it would certainly be less elaborate than others discussed here. Simply issuing a unilateral revocation is a legal possibility. It does not require negotiation in the way that an extension to Article 50 does. From the perspective of placing this kind of obligation by Parliament on the executive, it might have greater chances of practical success. However, though more than 6 million people signed a petition calling for revocation earlier this year, it does not have significant, open support among pro-EU politicians. They currently largely remain wedded to the ‘People’s Vote’ option, despite the risks it carries with it of defeat.

How might the government prevent a sitting Parliament from successfully legislating to oblige it to act in particular ways to which it objected? A procedural problem with the idea of forcing the holding of a referendum is that it would incur financial costs. The government is able to block the progress of legislation of this nature more easily than it can bills without such spending implications. If it had passed through its Commons and Lords stages, the government could also, in theory, ask the monarch to withhold Royal Assent from a bill it disliked intensely. Once again, we encounter a scenario in which the head of state is sucked into political controversy.

The so-called Cooper-Letwin bill, which became the European Union (Withdrawal) Act 2019, sought to force Theresa May to seek an extension to Article 50. However, by the time it had been passed, it seems she had already alighted upon this course of action anyway. What difference the legislation made is unclear. Forcing a Prime Minister who had been elected leader of the Conservative Prime Minister on a different programme, and who might make a virtue out of resisting Parliament and the courts, would be a different order of challenge to what is a novel approach by Parliament. If an Act seeking to alter the European policy of the UK Parliament did become law, the government might simply refuse to abide by it. For instance, it might complain that an effort to make it conduct diplomacy in a certain way was an improper intrusion into a traditional preserve of the executive. Given the looming end-of-October deadline, could the courts be utilised in sufficient time to force the government to obey the statute? Would judges even wish to become engaged in this way? These are open questions.

A General Election?

A more effective way of achieving a change of the policy of the UK government might be for Parliament to establish a different government. It would not be sufficient for it simply to make it impossible for the existing administration to function, as it has done with May. It would need to furnish its own alternative. It could do so in one of two ways. First, it could work within the existing Commons. Party attachments, however tenuous and painful they have become, have so far precluded this course of action. Second, it could dissolve itself, as it is able to do under the Fixed-term Parliaments Act 2011, and allow the voters to elect a new House of Commons. Current voter volatility, combined with the obscure workings of the parliamentary electoral system, make speculation about the outcome of such a poll difficult. But, depending partly on developments in the Labour Party, it could yield a majority in the Commons clearly committed to holding a ‘People’s Vote’ including ‘remain’ as an option for which the parties making up this group would campaign. To be sure of implementing this policy properly, which would presumably require another extension to Article 50, this group would need to form a government, whether of a single party or a coalition. This means of preventing Brexit, like the others discussed above, presents difficulties. It could require a reconfiguration of the party system, as many now recognise. Such an episode would be both inconvenient and traumatic for the politicians involved. But a no-deal Brexit might be far more unpleasant in its consequences, and for many more people.