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Robert Craig: What Happens Constitutionally If the Draft Withdrawal Agreement Is Voted Down?

Now that a draft withdrawal agreement has been settled with the European Commission, the next step is a ‘meaningful vote’ in the House of Commons pursuant to s 13 European Union Withdrawal Act (‘EUWA’) which I analysed recently on this blog with Gavin Phillipson. This post seeks to explore what the Prime Minister might do if the draft agreement is voted down. Three potential scenarios are suggested. The theme of this post is that the ripple effects of the Fixed-term Parliaments Act (‘FTPA’) mean that previously accepted constitutional norms may have been affected and it may be helpful to explore what could happen as a result.

Scenario 1 – Theresa May resigns as party leader but not Prime Minister

If Theresa May were to lose the “meaningful vote” on her proposed agreement, a central plank of her premiership will have been rejected by her party and by the House of Commons. As I have argued elsewhere with Gavin Phillipson, it is likely that a “clean” vote without substantive amendment would be necessary.

Historically, it is likely that the loss of such a vote would have meant going to the Palace to precipitate a General Election but the FTPA now prevents that. One alternative is resignation as party leader not as Prime Minister. 23 years ago, John Major decided to resign as leader of the Conservative Party without resigning as Prime Minister in order to face down critics in his own party, telling them to “put up or shut up”.

Mrs May might consider that one key advantage of resigning as leader but not as Prime Minister is that it would likely prevent the leader of the Opposition, Jeremy Corbyn, from somehow moving in to Number 10. This is because she could carry on as caretaker Prime Minister until a new Conservative leader was chosen and that new leader would be very likely to command the confidence of the House of Commons given the parliamentary arithmetic.

It will be recalled that the confidence and supply arrangement with the DUP is with the Conservative Party, not the Prime Minister. Furthermore, the terms of paragraph 2.18 of the Cabinet Manual would arguably apply because that alliance officially has an overall majority.

Where a Prime Minister chooses to resign from his or her individual position at a time when his or her administration has an overall majority in the House of Commons, it is for the party or parties in government to identify who can be chosen as the successor.

Conservative party leadership process

A Conservative party leadership contest is now governed by their internal party procedures (see this House of Commons library paper and here for a short summary). It may seem strange to be considering the internal rules of a political party in a constitutional law blog post but it must be remembered that, as Griffith pointed out, the constitution is ‘what happens’ and ‘everything that happens is constitutional’. In the modern era, large political parties dominate the House of Commons and the confidence of the House is now umbilically linked to who leads those parties. Consideration of Conservative party leadership election rules is therefore unavoidable.

The first point to make is that Mrs May could not fully replicate the John Major precedent because she could not resign as leader and then stand in the resultant contest against alternative candidates within the current party rule structure. There is therefore no “back me or sack me” option except perhaps by way of a non-statutory vote of no confidence of the whole House which would be a quite different matter (see below). The second point is that the Conservative leadership process is designed to whittle down candidates to a final pair who then put themselves to the general party membership for a final vote. In theory, this could take a considerable period of time – which may not be a luxury available to the country.

Fortunately, Mrs May’s own victory in the last Conservative leadership election is a good precedent whereby a clear winner amongst MPs could lead to the immediate withdrawal of the second candidate from the final ballot of party members. The entire process took 17 days. The internal rules, therefore, appear to leave considerable room for recognition of more pressing political realities.

More difficult would be if the two final candidates secure roughly equal votes amongst MPs or if the candidate with fewer votes believes the ordinary party members would prefer them as Prime Minister – perhaps due to his or her Brexit stance – and therefore refuses to withdraw. In those circumstances, it is to be hoped that the relevant grandees would bring about a seriously curtailed timetable. Party members are likely to be well informed in any event as to the candidates. It is suggested that such a ballot could, and with respect should, be organised within a far shorter period than is perhaps envisaged during a normal party leadership election process.

As an aside, the British system is grounded in representative democracy and the doctrine of confidence. It is unfortunate that MPs from both major parties have abdicated their representative responsibilities on this most crucial issue. How is it possible that a leader who does not command the confidence of the majority of the party MPs (and therefore of the House in fact), could ever be Prime Minister? Edmund Burke must be spinning in his grave.

Scenario 2 – The Prime Minister resigns

The forthcoming vote of MPs on the draft agreement needs every possible vote in its favour if it is to succeed. One of the weapons available to Mrs May would be to threaten to resign immediately as Prime Minister if she loses the vote. Under the FTPA, resignation is the only option because she cannot call an election. Such threats to resign must be believable to be effective and if she loses, she may feel resignation is unavoidable. In addition, the fact that her central policy has been rejected could lead her to the view that she is honour-bound to resign as Prime Minister – not just as party leader as in Scenario 1. Either way, we must consider what could happen if Mrs May resigns as Prime Minister.

The 2010 precedent

Some appear to think that the Queen must call the leader of the opposition if the Prime Minister resigns, or that she has some discretion as to what to do in such circumstances. This is mistaken. It is not clear exactly when understandings changed but there is a clear precedent. After the 2010 election, there was some uncertainty as to who should go to the Palace as negotiations were ongoing. The Palace made it crystal clear that it would not get involved under any circumstances. It was and remains

the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine and communicate clearly to the Sovereign who is best placed to be able to command the confidence of the House of Commons. (Cabinet Manual [2.9]).

This unfortunately left Gordon Brown in a fairly awkward position in 2010 where he was forced to stay in post whilst negotiations proceeded – indeed, some think he still resigned too early. Whilst this was difficult, it was essential due to another core principle of the constitution: Her Majesty’s Government must always be carried on. To put it more bluntly: there must always be a Government. Technically, the Prime Minister becomes a caretaker prime minister (Cabinet Manual [2.20]) when there is doubt over the continued confidence of the House of Commons (see further this Select Committee report, section 3).

In such circumstances, there are clear limitations on a caretaker Prime Minister’s freedom of action until a new mandate is secured – those restrictions mirror those that occur during the purdah period [Committee Report para 21] when a General Election is triggered. These restrictions are constitutionally necessary precisely because the confidence of the House of Commons – the sole source of Prime Ministerial authority – is arguably absent. Parliament and Prime Minister are inextricably intertwined in the UK’s political constitution, as Bagehot famously pointed out. That is why the ripple effects of the FTPA have spread so far. It is an error to claim that elections to Parliament and the tenure of a Prime Minister are wholly distinct issues.

It is suggested, then, that responsibility now rests solely with the politicians to decide who should go to the Palace. Her Majesty will rightly refuse to do anything except confirm whoever eventually emerges from the political maelstrom. The politicians must sort it out.

Some say the outgoing Prime Minister can, or should, advise on whom to call at the moment when they formally resign. I respectfully disagree. A Prime Minister who has lost the confidence of the House must lose the general right to advise the Monarch. It arguably follows that the outgoing Prime Minister cannot advise who should then be called to the Palace. Further, such advice would arguably constitute a major policy decision that falls outside their limited ”caretaker” role. It is submitted that the decision is a matter for MPs in the House of Commons.

In the event of a Prime Ministerial resignation, therefore, someone must be chosen by the politicians to replace her. There is, at least at the time of writing, a deal in place between the DUP and the Conservative party. The starting point, therefore, must be that someone – preferably without leadership ambitions themselves – should be nominated to act as a caretaker Prime Minister whilst a leadership election takes place (Cabinet Manual [2.18] – see above). The obvious candidate would normally be the Deputy Prime Minister, if there is one.

That candidate could announce to the House that following discussions with colleagues, he or she would go to the Palace until a new leader of the party was formally chosen. The situation would then be similar to Scenario 1 except Mrs May would not be the caretaker Prime Minister.

Alternative government

It is possible to envisage an alternative pathway. The Leader of the Opposition (or someone else) could, say, promise to organise another referendum. In those circumstances, what might be termed a “Conservative Remainer” caucus of MPs might hypothetically agree a “confidence and referendum” agreement – rather than the more common “confidence and supply” agreement – with a majority of Labour MPs. They would be unlikely to approve any domestic policy proposals and no doubt any such referendum would need to be organised as quickly as possible. This assumes the EU would grant an extension under Article 50(3). In those circumstances, the leader of this alternative Government could claim the right to go to the Palace.

In none of these scenarios would the Queen be involved in any way save the formality of appointment.

Scenario 3 – The Prime Minister carries on

Whilst it seems unlikely, it is entirely possible that if the meaningful vote is lost, Mrs May could continue in office. Some take the view that the FTPA now means that only a formal statutory vote of no confidence requires the Prime Minister to resign. This includes, for example, Mark Harper MP, former Conservative Chief Whip (see his recent evidence to the Public Administration and Constitutional Affairs Committee from: 15.37.28. Transcript here @Q195). If the meaningful vote was lost, Mrs May could argue that there is no time for a leadership election or general election and she must go back to the EU and attempt to renegotiate.

If Mrs May did attempt to carry on, it is possible that Conservative MPs could precipitate a leadership election through their internal procedures. If Mrs May survived that process, she would be safe for a year. If she lost, then we would be back in Scenario 1.

Vote of no confidence

The next potential situation could be that the Opposition bring a motion claiming that the House has no confidence in the Prime Minister because she has lost the meaningful vote under s 13 EUWA but has not resigned. This could be done via a statutory motion under the FTPA or by a non-statutory motion. If a non-statutory motion were chosen and the Prime Minister lost, that could lead to Scenario 2 again if Mrs May decided the loss of a straightforward vote of no confidence meant she ought to resign, even though the motion was non-statutory.

Matters are a little different if there were a statutory vote of no confidence under s 2(4) FTPA. The motion must be in the following form.

“That this House has no confidence in Her Majesty’s Government.”

The first point to make is that the Prime Minister could win. In those circumstances, she would then be able to continue in office until 2022 unless there were an internal leadership election in her party or a successful vote of no confidence.

If the Prime Minister lost a statutory vote of no confidence, then a 14 day period would ensue before an automatic general election is called. A general election will only be prevented if a vote of confidence in Her Majesty’s Government is secured within 14 days. In theory, due to the uncharted waters caused by the FTPA, Mrs May could carry on and seek such a vote of confidence in order to continue in office. Alternatively she might resign. If so, a caretaker candidate could be nominated and they could then seek a statutory vote of confidence within 14 days. If successful, they could then carry on as caretaker whilst a full leadership election took place in the Conservative party.

Alternative government

It is possible that if a statutory vote of no confidence is lost by Mrs May, an alternative potential Government could form, following an agreement with a putative Conservative Remainer caucus (as above). At this point it is necessary to highlight a further drafting issue in the FTPA, first highlighted by Gavin Phillipson.

Section 2 (5) FTPA states that a motion in the following terms must be passed.

“That this House has confidence in Her Majesty’s Government.”

The problem is that such an alternative slate would not technically be “Her Majesty’s Government” because the leader of the alternative government would not yet have been appointed as Prime Minister. One potential solution might see a three step process. The first step would be that a non-statutory motion would be passed expressing the confidence of the House in the alternative potential Government. This would be a direct analogue of an “Investiture Vote” for which the Political and Constitutional Reform Select Committee persuasively argued in their 10th report of 2014-5 at [61].

The leader of the alternative Government would then be in a position to claim the right to go to the Palace as the person best placed to command the confidence of the House. The incumbent Prime Minister would be expected to resign (Cabinet Manual [2.19]). Once appointed as Prime Minister, and as long as 14 days had not passed, a statutory vote of confidence could then be sought and a general election would be prevented if it passed.

Conclusion

This post has sought to map out three potential scenarios if the meaningful vote in Parliament under s 13 EUWA is lost by the Prime Minister. It has argued that there is no longer any role for the Queen in any part of this process except to confirm whoever has demonstrated that they possess the confidence of the House of Commons. It has also been suggested that matters have been perhaps unnecessarily complicated by the ripple effect of the FTPA. Many will recall that the FTPA is so unpopular in the House of Commons that, for example, the latest Conservative party manifesto is committed to repealing it.

The author would like to thank Gavin Phillipson, Petra Schleiter, Jack Simson-Caird, Graeme Cowie and Tom Poole for their helpful comments on a previous draft. The usual disclaimer applies.

Robert Craig, PhD Student, Durham University

(Suggested citation: R. Craig, ‘What Happens Constitutionally If the Draft Withdrawal Agreement Is Voted Down?’, U.K. Const. L. Blog (16th Nov. 2018) (available at https://ukconstitutionallaw.org/))

11 comments on “Robert Craig: What Happens Constitutionally If the Draft Withdrawal Agreement Is Voted Down?

  1. Excellent and informative post, Robert. My only (small) comment is that Parliament could also repeal the FTPA, or at least s1(2)(b), on a simple majority if 2/3 is not available for a no confidence vote. That might produce an interesting debate in the House of Lords if nothing else.

    • Robert Craig
      November 19, 2018

      Mark, many thanks and you are right of course. A simple Act could change the date of the next election as well without repealing the FTPA. I wrote a longer article about that in the MLR this year – happy to send you a copy if you email me.

  2. Peter Rumsby
    November 16, 2018

    All this supposition is assuming those in the House are honourable, the last 2yrs have shown they are certainly not that. So what are the options to deal with a PM that stays in post regardless of the actions of those in the House. A PM that keeps her own party in the dark has no scruples about doing the same to the House.p

  3. Marconatrix
    November 18, 2018

    Thank you for your detailed analysis of this clearly complex area … and that’s even before all the politics and personalities are even considered … Interesting Times! 🙂

  4. Adam Hiley
    November 19, 2018

    I fear unrest no wonder the Army is going to be put on the streets I see an angry public on the streets enraged by continually been betrayed by our so-called parliamentarians

  5. Pingback: Weekly Notes: legal news from ICLR — 19 November 2018 - ICLR

  6. KB
    November 20, 2018

    Great post. Only one thing I think you get wrong.

    It is not at all unlikely that May would simply not resign if her deal is voted down.

    Nothing she has said or done suggests she would go voluntarily and a majority of tory MPs would likely still be of the view that the membership would vote for someone worse as PM.

    I suspect she would try again after cosmetic changes to the political declaration. If that fails she still would not resign and by that point may well be under the protection of having won a no confidence vote as tory leader.

    The only realistic path I can see to May falling is if the DUP support a vote of no confidence in the government

    • Robert Craig
      November 24, 2018

      Thank you. Nothing in my post is affected, in my view, if Mrs May does not resign immediately. Imagine she tried again (to pass the deal) if she did not succeed the first time and failed again. Then she might resign and all the scenarios would then kick in. The constitutional rules as to what happens in various scenarios are not really affected by matters of timing.

      • JR
        November 26, 2018

        Thanks for this interesting article – and I take your point about KB’s comment not invalidating the options you outline. But isn’t KB right to suggest that the government may have scope to come back and try again, with various tweaks to parts of the deal? I am thinking less about the Withdrawal Agreement and more about the political declaration. For example, let’s say that the votes on amendments to the motion on the deal indicate significant support for an EEA-type deal plus a customs union – maybe not a majority but let’s say it’s a lot closer than the vote on the government’s unamended motion. What’s to stop the government going back to the EU to seek confirmation that that option is still on the table and then trying again on that basis? Or even simply making a unilateral declaration that it will pursue that option, in the hope that this will be sufficient to persuade enough MPs to support the deal and thus enable Brexit to go ahead? I note that the DUP appears to have indicated that it might be able to live with the Norway option if it avoids a regulatory border between the mainland UK and NI. That said, this is probably just one of many other permutations and it would be difficult to cover them exhaustively in a relatively short blog post.

  7. Mark W Adams
    November 20, 2018

    “[If she resigned only as party leader] she could carry on as caretaker Prime Minister until a new Conservative leader was chosen and that new leader would be very likely to command the confidence of the House of Commons given the parliamentary arithmetic.”

    Why would she be a “caretaker prime minister” in this situation? Couldn’t she simply remain prime minister even after a new Tory leader was elected? Would the new Tory leader “automatically” become Prime Minister? Is there any constitutional reason why the party leader & prime minister need be the same person?

    • Robert Craig
      November 24, 2018

      She would be a caretaker prime minister because her source of authority, the confidence of the House of Commons, would have dissipated. Such PMs are constrained in what they may do by what is called the “caretaker convention”.The Prime Minister is the person who commands the confidence of the Commons. In our system that is the person who leads the Conservative Party right now as long as the DUP remains on side. One interesting question is whether there are constitutional issues raised by the fact that if Corbyn ever becomes Prime Minister, he may not in fact command the confidence of the Commons. But that is an issue for another day.

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