Constitutional Law Group October 10, 2019 European Union, UK government, UK Parliament

Jeff King: The Prime Minister’s Constitutional Options after the Benn Act: Part II

This is the second of a two-part discussion of this theme. The first part addressed the obligations under the Benn Act and the legal response to attempts to frustrate it; this second part addresses non-confidence motions, resignation and change of Government. Heading numbering is continued from Part 1.

5. Non-confidence procedure under the FTPA – the PM ‘squats’

Section 2 of the FTPA provides for an early election if a motion in the words ‘That this House has no confidence in Her Majesty’s Government” is passed in the Commons and another in the form ‘That this House has confidence in Her Majesty’s Government.’ does not pass within fourteen calendar days. In its 2010 Report (HL Paper 69) on the Fixed-term Parliaments Bill, the Constitution Committee concluded at [121] that the provision ‘does make it clear that an alternative government can be formed.’ The Explanatory Note to section 2(3) simply states ‘The intention is to provide an opportunity for an alternative Government to be formed without an election.’ The Cabinet Manual also states at [2.19] that ‘[t]he Prime Minister is expected to resign where it is clear that he or she does not have the confidence of the House of Commons and that an alternative government does have the confidence.’

It follows that any attempt by the sitting Prime Minister to ‘squat’ in No. 10 Downing Street after a section 2 vote of non-confidence by not giving way to an alternative government would frustrate the object and purpose of section 2(3) of the FTPA as well as the overall aim of the FTPA to avoid early elections. He must give way to such a government in order for it to be recognized by the Queen as ‘Her Majesty’s Government’ for the purposes of allowing the second motion to be passed and thus to stop the fourteen day countdown leading to an early election.

Would there be an enforceable remedy? The two possibilities are the Queen’s power to dismiss and the courts’ power to intervene. The reserve power of dismissal is reviewed comprehensively in Anne Twomey’s The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (CUP 2018) in ch. 4. In a relevant passage at p. 265, she observes, citing many esteemed British and Commonwealth authorities, that

[i]f a government is defeated at an election or in a matter of confidence in a vote on the floor of the lower House, the chief minister is obliged to resign on behalf of the government (subject to any restoration of confidence within a reasonable period or the securing of a dissolution). If the chief minister refuses to resign or advise dissolution within a reasonable time, the head of state is entitled to dismiss the government on the ground that it has ceased to be responsible to Parliament.

As the Cabinet Manual states at the outset of chapter 2, ‘A government holds office by virtue of its ability to command the confidence of the House of Commons, chosen by the electorate in a general election.’ It follows that the Queen is bound by convention only to follow the advice of a government which commands such confidence. The Queen would undoubtedly need very clear evidence both that an alternative government would have the confidence of the House and that the current PM has no prospect of regaining it under the FTPA procedure. A motion confirming the former could be passed in the House of Commons, which under present circumstances would also amount to conclusive proof of the latter.

In reflecting on this kind of scenario in its 2018 report entitled ‘The Status and Effect of Confidence Motions and the Fixed-term Parliaments Act 2011’, the Political and Constitutional Affairs Committee observed at [35] that for the PM ‘‘[n]ot to resign in such a circumstance would risk drawing the Sovereign in to the political process, something the Cabinet Manual is very clear should not occur.’ The sovereign does possess the undoubted legal power to dismiss the PM under such circumstances. Yet it is hard to know whether he will press arguments upon her – perhaps of a legal character of what is permitted under the FTPA – that would complicate her choice.

This raises the salience of resorting to courts of law, which would also be, perhaps ironically, more democratically legitimate under those circumstances. Absent a resignation or dismissal, the primary reason to resort to a court is that it is clear that the legal policy of section 2(3) of the FTPA is to enable a change of Government, and ‘squatting’ undeniably frustrates that policy.

In my view, the legal remedy for such action would be for a claimant to seek judicial review shortly after the Commons would pass its motion, at the first sign of the PM’s intention to squat. The unlawful conduct would be his refusal to give way to an alternative government, perhaps under a misdirection of law. A declaration could be sought to that effect. A further remedy in such a case, short of the spectacle of injunctive relief seeking to evict the Prime Minister or force him to resign, would be to have any recommendation of a polling day to the Queen under section 2(7) declared (perhaps prospectively) to be unlawful and of no effect. Section 2(7) provides that if the fourteen day negotiating period expires without a second statutory motion affirming confidence in Her Majesty’s Government, ‘…the polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister…’ By declaring that any such recommendation is or would be null and void, the court would prevent an early election from being called under the FTPA pending the resolution of the dispute.

A recommendation to the Queen under section 2(7) would be unlawful on the reasoning set out in the leading case of Padfield and Others Appellants v Minister of Agriculture [1968] AC 997, 1030 (Lord Reid), whose key holding was as follows:

Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court.

The powers in section 2(7) are either statutory powers after the passage of the FTPA, or are anyway so closely regulated as to fall squarely within the Padfield principle.

The fourteen-day period would probably be too compressed to obtain a final legal remedy in such a matter. However, it would be a good case for an interim injunction prohibiting the PM from giving a recommendation under section 2(7) of the FTPA prior to the conclusion of proceedings. Were the recommendation ultimately found unlawful, and the PM to persist in squatting, the best legal solution would be for the sovereign to dismiss him. The judgment of the court would remove any question of constitutional impropriety.

It is important to conclude by reflecting that this legal position should suit the PM as much as the opposition at the present time. If the PM were ‘forced out’ and the opposition could take whatever electoral heat for extending the negotiating period, followed shortly by an election, the PM could capitalize on the result and the inevitable headlines without having breached any of his red lines. Mr. Johnson could play the martyr and the phoenix.

6. A non-statutory motion of non-confidence

The opposition could seek to force the PM from office without risking an early general election under the FTPA. It is well-recognized that the FTPA did not aim, and should not be understood as having the effect, of altering the convention that the PM must resign upon losing a motion of non-confidence in the situation where confidence is not swiftly regained. A non-statutory motion would, after the FTPA, trigger the duty to resign. However, the duty would be conventional only and none of the legal arguments presented in the last section would avail to effectively force the PM from office. Only the Queen could exercise the power to do that. The PM would be unable to complicate the choice for her by invoking arguments regarding the legal effect of the FTPA.

7. Resignation

The PM might opt to resign rather than send the letter or suffer a vote of non-confidence. What is important to recognize is that the PM cannot evade the obligation to send the letter by just walking off the job at the last minute. As a matter of law, the resignation of a Prime Minister is not effective until it is accepted by the sovereign. There is an ‘old common law rule that a person cannot legally refuse service under the Crown.’ (Twomey, The Veiled Sceptre, p.240, quoting Quentin-Baxter). In practice refusals of resignations have in reality been the successful resort to persuasion by the sovereign to convince the Prime Minister to remain in office until a suitable replacement could be found or election called. The Cabinet Manual ([2.7]-2.10]) and the report of the Political and Constitutional Affairs Committee ([59]) both suggest that the PM should not offer her or his resignation until ‘clear advice can be given to the Sovereign on who should be asked to form a government.’ The Cabinet Manual falls short of declaring this to be a convention.

Assuming Mr. Johnson remains leader of the Conservative Party, the almost inevitable consequence of resigning would be for the Leader of the Opposition to be called by the Queen. Whereas under the FTPA, a deadlock in negotiations between opposition parties could lead to an election, a unilateral resignation cannot produce such a result. The Queen must send for another person best placed to command the confidence of the House of Commons, and here the word ‘best’ must be read, as it is by Tina Turner, as meaning ‘better than all the rest.’ (See further the engaging analysis by Robert Craig on this point). Absent a working confidence agreement in an alternative leader, the Leader of the Opposition is the only credible candidate for that role. (The Lib Dems would need to rely heavily on peers even to form a Government, pleasing no one but tabloid journalists). The Leader of the Opposition will know this and thus have little reason to bargain for more than a confidence and supply arrangement, to say nothing of giving way to another candidate on national unity grounds. Strictly, he would not even need that arrangement.

In other words, the PM will need to weigh the advantages of not sending the Benn Act letter against the disadvantage of being the direct cause for the creation of a government under Mr. Corbyn. Strategically, it may be best for his endgame to weather a showdown under the FTPA and exploit the resulting turmoil in a subsequent election campaign. That advantage depends, however, on what an alternative government might do in the meanwhile.

8. The options open to an alternative Government

There is no space to consider the complexities of forming an alternative Government (though see ch. 2 of the Cabinet Manual for some illustrations). Four brief points will have to suffice. First, no caretaker convention applies automatically to any new government formed after resignation of the current government. Any alternative government would be free to carry on any policy it sees fit, subject only to the law and non-confidence votes in the House of Commons. Whether it voluntarily adopts a (bespoke) self-denying ordinance is another matter – probably regulated by confidence and supply arrangements. Second, fresh legislation would be required either to hold a second referendum or to revoke article 50 notice. The former is presumed by the Political Parties, Elections and Referendums Act 2000, and the latter would, as explained clearly by Gavin Phillipson and Alison Young, be contrary to the object and purpose of the European Union (Withdrawal) Act 2018. Third, it is possible that the alternative Government would seek to remain in No. 10 Downing Street to resolve the Brexit crisis rather than go to the polls right away. The fractured nature of the rebel alliance is such that it could be routed under a first-past-the-post election. That could occur unless they manage to converge not only on a message as clear as the Conservative and Brexit parties will have, but on an electoral strategy for not splitting the vote in particular constituencies. They might consider it easier to agree the strategy in the current Parliament instead of coordinating one for the election. It would also avoid the need to call two elections in a single year.

Fourth and finally, what has not been appreciated sufficiently is the time scale involved for a second referendum, considered by many to be the only way to break the deadlock. The Constitution Unit estimates that a compressed schedule for a second referendum would consist of 22 weeks. If such legislation were to follow an early election approved by a motion passed by the House of Commons on, for example, 1 November 2019, the referendum date would be around mid-May 2020. Even if an alternative Government in this same Parliament commenced preparations immediately on or around 22 October 2019 the date would fall around 24 March 2020. The Benn Act seeks an extension until 31 January 2020. Whether it should simply be assumed that the EU will grant another extension if the UK undertakes preparations to hold another referendum is perhaps a matter of debate. If the opposition parties believe a second referendum is the only way out, they should probably be exploring whether the compressed schedule can be compressed even further, without creating a constitutional black hole from which no light can escape.

The author would like to thank Mark Dsouza, Robert Hazell, Tom Hickman QC, Gavin Phillipson, Sir Stephen Sedley, Jack Simson Caird, and Alison Young for written comments, and Alan Renwick for a helpful earlier discussion.

Jeff King is a Professor of Law at UCL, and a Legal Adviser to the House of Lords Select Committee on the Constitution. He writes in a personal capacity only.

(Suggested citation: J. King, ‘The Prime Minister’s Constitutional Options after the Benn Act: Part II’ U.K. Const. L. Blog (10th Oct. 2019) (available at: https://ukconstitutionallaw.org/blog/))

13Comments

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1

James on October 10, 2019 at 10:47 am
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Did the Benn Act comply with HRA 1998 Section 19? In the rush to get it through, it appears they forgot (or lacked a willing co-operative minister) to tick this box? Could a minister use that as an excuse to edit the Benn Act (per HRA 1998 Section 10.1.b &2 and acting quickly under Schedule 2(b)) to clarify that nothing in the Benn Act is intended to deprive the Prime Minister of the Freedom of Expression (Article 10)? This would provide the PM the right to send a second letter? This could all then be disputed at length in the courts, maybe even to ECHR?
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Malcolm Ramsay on October 10, 2019 at 10:55 am
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“What is important to recognize is that the PM cannot evade the obligation to send the letter by just walking off the job at the last minute. As a matter of law, the resignation of a Prime Minister is not effective until it is accepted by the sovereign.”

Thank you for clarifying the current legal position on this but I’m not convinced it would leave Johnson exposed if he takes that route.

It’s one thing saying that the PM cannot evade essential responsibilities by resigning suddenly, it would be something else for the courts to require him to do something he ‘cannot personally do in good conscience’ when (from a legal perspective) it could easily be done by Her Majesty herself and is in any case not urgent in any meaningful sense.

The fact that there might be political barriers to the Queen making the request herself (and political obstacles to someone else making it after the 19th) doesn’t change the fact that, in the modern era, it would be outrageous to find him legally culpable in that situation. Since he could plausibly argue that he was sacrificing his position at the heart of government, and perhaps his whole political career, to avoid violating a principle he is deeply committed to, I would not expect the ‘old common law rule that a person cannot legally refuse service under the Crown’ to survive any attempt to punish him for it.

In practice, though, I’d be amazed if the Queen did refuse his resignation, especially if he had told her in advance that he’d be resigning with immediate effect in the event of whatever parliamentary initiative he has planned for the 19th failing.

As for her asking Jeremy Corbyn to take over as PM, I’d have thought that would only happen if Johnson fails to recommend a successor from his own party. If he resigns on the evening of the 19th and recommends that Her Majesty invites Dominic Raab, say, to take his place, it would be very odd for her to invite Corbyn instead. Raab, of course, would need a few hours to think about it (it is, after all, a position with huge responsibilities which he’d be taking up at a particularly challenging time and, unusually, the roles of PM and party leader would be split) so he would not take office until after the Benn Act deadline had passed.

I think in this scenario, too, “Mr. Johnson could play the martyr and the phoenix” – without relying on Corbyn to table a vote of no-confidence.
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georgiouleon91 on October 10, 2019 at 2:36 pm
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If the Prime Minister ignores his statutory duty to request an extension under the Benn-Burt Act and the court does not appoint another person to do it on his behalf, or any other hypothetical set of facts that result in the letter not being written, will the UK have left the EU on 31st October without a deal?

Most commentators seem to take it as granted that even though the Prime Minister will have behaved illegally in English law, the UK’s membership of the EU will nonetheless be terminated. But surely there would be an argument that the withdrawal will not be “in accordance with [the United Kingdom’s] own constitutional requirements” under Article 50 and thus null in EU law?
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  Tony on October 13, 2019 at 10:19 am
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  This is a good point – the constitutional requirements of the UK mean that any withdrawal has to be lawful. Failing to extend when the law requires it would be inconsistent with this and the court could annul the withdrawal.
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Tony on October 11, 2019 at 10:04 am
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“…fresh legislation would be required either to hold a second referendum or to revoke article 50 notice. The former is presumed by the Political Parties, Elections and Referendums Act 2000, and the latter would, as explained clearly by Gavin Phillipson and Alison Young, be contrary to the object and purpose of the European Union (Withdrawal) Act 2018…”

I believe the assertion that legislation is required to revoke the Article 50 notification is incorrect.

The object and purpose of the European Union (Withdrawal) Act 2018 is to facilitate EU withdrawal, but only with a withdrawal agreement. Because the withdrawal agreement can only be reached if the EU agrees, it cannot be controlled by Parliament. In addition, the Act provides an explicit mechanism for Parliament to reject any proposed withdrawal agreement.

Does this mean that withdrawal without an agreement is the default? Given the degree to which legal rights and obligations would be adversely affected, it would be extraordinary if the Act permitted withdrawal without an agreement with less procedural regulation (e.g. section 13) than withdrawal with an agreement.

In addition, there are express provisions in the Act which are inconsistent with the legal implications of a no deal Brexit. To see this look at section 10: it effectively mandates the “Continuation of North-South co-operation and the prevention of new border arrangements”. It also prevents the use of the Act’s powers to “…create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature… checks and controls, that… are not in accordance with an agreement between the United Kingdom and the EU”. Withdrawal without agreement would result in new border arrangements without agreement with the EU.

Withdrawal from the EU without agreement is also unlawful under the Human Rights Act 1998 because this would terminate certain aspects of free movement rights which overlap with ECHR Article 8 (“Right to respect for private and family life”). Note that domestic law provisions in various EU member states preserving residence rights only apply to people that have actually established residence in those states. In contrast, there are classes of people that have become economically and socially dependent on free movement rights in a way which does not involve establishing residence in other member states, and it is the termination of those rights (in a no deal scenario) which would violate ECHR Article 8. Section 6 of the Human Rights Act prevents any public authority from acting in a way which is incompatible with an ECHR right, and this includes a failure to act, which in this context would be a failure to revoke the Article 50 notification.
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Michael Detmold, emeritus professor of law, University of Adelaide on October 11, 2019 at 10:16 am
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Professor King, It is clear under the 2011 Act that a new government can be formed in the 14-day interim period; it is just as clear that the previous Prime Minister can also use that period to attempt to recover his majority. You offer almost no analysis of the latter possibility, founding your argument right from the start upon the loaded word ‘squat’. How do you distinguish squatting from using the telephones to persuade the required number of members to return to a majority of confidence, or – perhaps more to the point – persuade their constituencies to require it of them? You quote Anne Twomey, apparently not realising that the part in brackets contradicts your argument: ‘if a government is defeated at an election or in a matter of confidence in a vote on the floor of the lower House, the chief minister is obliged to resign on behalf of the government (subject to any restoration of confidence within a reasonable period or the securing of a dissolution)’ – you surely wouldn’t claim that 14 days is longer than ‘a reasonable period ’ would you?

You also miss the overall sense of the Queen’s constitutional position: as a constitutional monarch she must where possible look to the support of the Prime Minister through advice or, in certain cases of great importance, look to the people through an election. I agree with you that in this case the former is irrelevant – the latter, however, will be very much in the foreground of the Queen’s thinking. And she will have her election if the Prime Minister fails in the 14-day period to recover his majority, for it will follow in the ordinary course of the statute.

Finally, there is no issue between the Prime Minister and some other member of Parliament supported by a vote in the Commons. It being the case that the Prime Minister is entitled to use the 14-day period to attempt to recover his majority, it follows that no alternative government will be commissioned in that period (and so the possibility of an alternative does not arise; but even if it did, the commission would be, as it was in Australia in 1975, on condition of an immediate election).
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  Tony on October 13, 2019 at 9:56 am
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  “You also miss the overall sense of the Queen’s constitutional position: as a constitutional monarch she must where possible look to the support of the Prime Minister through advice or, in certain cases of great importance, look to the people through an election.”
  
  This isn’t completely correct. The PM is the Queen’s chief adviser by virtue of the fact that he or she has the confidence of the House of Commons. If the PM looses that confidence the Queen may look to the House of Commons as a whole for advice. This can be expressed through motions and “humble requests”. It’s not the Queen’s role to “look to the people” via an election because there’s no mechanism to do this: elections do not issue directions for the government – they send representatives to Parliament.
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Daniel Halberstam: EU Brexit Litigation: A Short Guide to the Perplexed – UK Constitutional Law Association on October 11, 2019 at 10:30 am
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[…] care to explain some of the domestic limitations under which the Government currently labours (see here and here). I shall take up the thread here by turning to how EU law ties into the U.K.’s […]
9

BaronAsh (@BaronAsh1) on October 11, 2019 at 4:24 pm
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Anything as complicated and labyrinthine as this is a Gordian Knot in need of being cut. For this we have the Crown. But nowadays, the Crown no longer commands the confidence of the institutional barons (Parliament, Judiciary, Press, Populace) and so we will waffle around forever with no proper solution available, let alone possible.

For clearly the only effective way forward is for the Crown to step in and declare that the UK has left the EU unilaterally.

Then we can negotiate with them with that as a given from outside their jurisdiction.
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  Tony on October 11, 2019 at 6:12 pm
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  “For clearly the only effective way forward is for the Crown to step in and declare that the UK has left the EU unilaterally.”
  
  The crown (i.e. the UK state) does not have the legal authority to do this. Any declaration purporting to withdraw the UK from the EU that was not pursuant to the procedure in Article 50 TEU would not be effective under UK or EU law and the UK courts would declare it null and void.
11

Getting Rid of Them | Verfassungsblog on October 11, 2019 at 5:03 pm
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[…] as JEFF KING shows, the queen would be on safe ground if she did boot him out. The Fixed Term Parliaments Act, […]
12

Brexit Highlights 7 – 13 October 2019 – Middle Temple Library Blog on October 14, 2019 at 4:04 pm
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[…] – Jeff King: The Prime Minister’s Constitutional Options after the Benn Act: Part I; Jeff King: The Prime Minister’s Constitutional Options after the Benn Act: Part II; Daniel Halberstam: EU Brexit Litigation: A Short Guide to the Perplexed; Roger Masterman and […]
13

Not a Lawyer on October 19, 2019 at 2:09 pm
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I find this analysis (across both parts) terribly inadequate. I have identified 27 ways that have been raised (or not) that would allow the UK to leave with no deal on 31st October despite the European Union (Withdrawal) (No. 2) Act 2019, only one of which involves a vote in Parliament in support of 1(1) or 1(2) of the Act.

Many of those 27 have no legal standing, have already been rejected or are already too late to consider.

There do remain, even today as Parliament discusses a motion to agree on the agreed deal, a number of options. Some I lack the legal learning to ascertain whether they would stand up to a court challenge, some I feel would stand up but accept that the courts can not be predicted, but there do exist several options available to the Prime Minister and to the Government, and I would certainly not bet against the UK leaving the EU on 31st October, even if Parliament fails to agree a deal.