This post follows on from a previous piece where I attempted to set out the general rules, and a flowchart, to create a route map in the event of a vote of no confidence. This post seeks to address the narrower question of what could happen if the Prime Minister (‘PM’) refused to send the letter to extend the Article 50 process and instead decided to announce the resignation of the Government before the deadline. This post assumes that the resignation would be by the whole Government on the grounds that collective responsibility on its central policy would apply in all the circumstances.

The deadline for sending the letter under the Benn-Burt Bill (now European Union (Withdrawal) (No. 2) Act 2019 (‘EUW2’)) is 19 October 2019 which is a Saturday.

It is a convention that prime ministers should, where possible, give sufficient notice of their resignation so that an alternative prime minister can be identified. In those circumstances, let us suppose that the PM announces to the House of Commons on its return on Monday 14 October that the Government will formally resign on the morning of Friday 18 October rather than send the letter under the Act.

The Queen must have a Government

One of the most central rules of the constitution is that the Queen must have the benefit of ministerial advice. Such an announcement by the PM would thus require that a new PM be chosen to form a new government. In my previous post I argued that the new PM would normally have to be nominated by the largest party or grouping in the House of Commons in order for the candidate to be clearly best placed to command the confidence of the Commons. It is a matter of numbers.

The rule that a new PM must come from the largest party or grouping is universally agreed if the largest party or grouping has an overall majority. My view, as argued before, is that the starting point should be the same in situations where there is no overall majority because such a rule would be clear, simple and rational. It is also arguably the best way to ensure that the Queen is never drawn into the political arena.

Others disagree, however, and argue that where there is not an overall majority for any party or grouping, then there must be negotiations between the major parties until a settlement is reached. Of course this increases the possibility that the Queen could be drawn into the situation in extremis – indeed some commentators would defend that option as a last resort. The author respectfully demurs from the latter view as incompatible with a modern democracy.

My own view remains that if, for some reason, the largest party or grouping cannot, or will not, nominate a new PM, then, if all else fails, the Commons must decide  who is best placed by a vote or votes on motions in the Commons for that purpose. Such motions could possibly be drafted along the lines of “This House believes [X] is best placed to command the confidence of the House of Commons”. Other commentators may have alternative potential solutions to suggest.

Immediate steps after announcement of imminent resignation as PM

The first point to note is that the PM, and the Government, has the absolute right to resign at any time. The Government cannot be forced to stay in office. The convention that the PM waits for a successor is important, but ultimately cannot trump the right to resign.

It is important to note that Mr Johnson could remain as the leader of the Conservative Party even after the Government resigns, unless he is brought down within his party by Conservative MPs. If he was deposed as leader, a temporary replacement would be likely pending a full Conservative party leadership election. This post assumes Mr Johnson would continue as leader of the Conservative Party.

The second point is that the scenario explored in this post could create exactly the unusual circumstances that were suggested above where the largest party or grouping cannot, or will not, nominate a new PM. Mr Johnson could announce that no Conservative MP is permitted to accept any offer to be PM and keep the whip. That would rule out 288 Conservative MPs from being PM unless they resigned the party whip. (It would also circumvent my suggested rule – to recap, my suggested rule is that a new PM must normally be called from the largest party or grouping because, as a matter of pure numbers, no one else is likely to command greater numerical support).

Who then would be best placed if all whipped Tory MPs refuse to be PM?

There is a long-standing traditional answer as to who should be called in these kinds of situations. The next in line to be PM in such circumstances is the Leader of the Opposition (‘LOTO’). LOTO is currently Mr Corbyn. He is supposed to stand ready, constitutionally, to step in, if necessary, as PM.

Mr Corbyn, as the leader of the largest party outside the Tory/DUP grouping would therefore appear to be the default option to be called by the Queen in these circumstances. If there was any other opposition grouping that formed which somehow outnumbered Mr Corbyn, the leader of that grouping could claim to be best placed to command the confidence of the Commons. It is fair to say that this possibility seems quite unlikely but if it happened, it might well involve negotiations between the smaller parties and some Labour MPs, and if necessary votes in the Commons as previously discussed. The rest of this post will assume, however, that Mr Corbyn would be called to the Palace and become PM.

Recommending a successor?

Suppose the PM and the Government therefore formally resigns on the morning of Friday 18 October. It is sometimes argued that the incumbent PM has a duty to ‘recommend’ a new PM. This is mistaken. Of course giving formal advice would frequently be entirely illogical because such formal advice by the PM to the Queen is predicated on having the confidence of the Commons. If a PM loses confidence and someone else is best placed to command confidence, how can the incumbent have the standing to advise who else has confidence?

The manufacturing of a duty to ‘recommend’ who to appoint, has somehow been distinguished from formal advice by some commentators. On close examination, it is suggested that the idea is equally hard to follow as a matter of logic. Why is the former PM’s opinion relevant or probative? It is the Commons that has the duty to identify a successor, through the party system or otherwise. A former PM may be asked his or her opinion out of courtesy, but equally, it would be no problem if they were not.

In the current case, therefore, Mr Johnson would be under no duty to recommend a successor. Nor would he be likely to want to make any recommendation in these circumstances. He would be under no obligation to do so.

Sending the Letter

One of the first acts of Mr Corbyn, as the new PM, would be to send the letter mandated in s 1(4) of EUW2 and set out in the Schedule to the Act. Presumably this would happen later on Friday 18^th October to meet the deadline of Saturday 19 October. No doubt any new exit date could be swiftly agreed with the EU27, unless the extension was refused, and the relevant statutory instruments under the European Union (Withdrawal) Act 2018 to change the exit date in domestic law could be laid immediately – possibly over the weekend.

New Prime Minister and new Leader of the Opposition

If he remained leader of the Conservative Party, Mr Johnson would then become the new Leader of the Opposition. Mr Corbyn would be the new Prime Minister. The next steps would appear to follow logically. As the new Leader of the Opposition, Mr Johnson would have the right, by convention, to seek and obtain the parliamentary time to bring a statutory vote of no confidence (‘VoNC’) `in Her Majesty’s Government, led by Mr Corbyn, under the Fixed-term Parliament Act 2011 (‘FtPA’). He might well bring a VoNC at the earliest opportunity.

Two outcomes are possible. If Mr Corbyn were to win the VoNC, he would stay on as the new PM and take over negotiations with the EU27 over Brexit. The numbers would appear to be against him, however. He has only 247 MPs in his party. The possibility cannot be ruled out, however, especially in these febrile times.

If Mr Corbyn were to lose the VoNC, a 14 day period would be triggered under the Act. The most likely subsequent outcome would be that the 14 day period simply runs out and an election ensues with Mr Corbyn as the new PM and Mr Johnson as the new Leader of the Opposition.

Alternatively, Mr Corbyn could win a subsequent a vote of confidence under the FtPA. This is a separate procedure to the VoNC procedure. Such votes of confidence can be brought in the 14 day period by Her Majesty’s Government. They require 50%+1 of the vote in the Commons.  If Mr Corbyn won such a vote of confidence within the 14 days, he would then stay on as PM.

There is another possible outcome, although it would seem quite unlikely. If, within 14 days, Mr Johnson were to be able to demonstrate that he could form a government and that he was in fact clearly best placed to command the confidence of the Commons instead of Mr Corbyn, he might argue that Mr Corbyn would have a duty to offer his resignation to the Queen, or be dismissed. The Queen would then have a duty to reappoint Mr Johnson as PM. This potential pathway would face the same difficulties as discussed above where there is no grouping with an overall majority. There are no circumstances, it is suggested, where the Queen could ever be involved.

Mr Johnson’s next steps if he is reappointed by the Queen as PM

If reappointed, Mr Johnson would then have two choices. He could bring a vote of confidence under the FtPA. Mr Johnson now has only 288 MPs plus 10 DUP MPs so there is no way to know if he would succeed in passing a vote of confidence. If he did succeed, he would continue as PM and the situation would in effect return to the status quo ante save that there would be a new date for Brexit, agreed by Mr Corbyn.

Alternatively, Mr Johnson could choose not to bring a vote of confidence under the Act (it is not obligatory). Or he could lose the vote of confidence, if he brought one. After 14 days an election would then be triggered and would follow under the normal procedures of the FtPA but with Mr Johnson as PM.

Conclusion

Mr Johnson has said he will not send The Letter mandated in EUW2 and he wants there to be an election. He may yet achieve both goals – and might even fight an ensuing election as Prime Minister.

The author would like to thank Gavin Phillipson, Alison Young and Peter Ramsay for their helpful comments on a previous draft.

Robert Craig, AHRC Doctoral Researcher, University of Bristol

(Suggested citation: R. Craig, ‘What Could Happen Next If the Government Resigns Rather than Send the Letter to the EU?’, U.K. Const. L. Blog (11th Sept. 2019) (available at https://ukconstitutionallaw.org/))