The looming uncertainty around Johnson’s term in office is not just a perfect setting for political intrigue, but may also have something to offer to students of constitutional law. It should draw our attention to one of the fundamental questions of the UK constitutional process – how should we choose or remove a Prime Minister between general elections? The constitutional theory is straightforward. To become a Prime Minister, an MP must enjoy the confidence of the majority of the members of the House of Commons. Constitutionally, therefore, Parliament, not the electorate, selects the PM for appointment by the Queen. Hence, the House of Commons as a whole should remove and select the PM. According to this theory, then, Johnson would be removed if he loses a vote of confidence on the floor of the House of Commons. The classical formulation is neat but incomplete. Most importantly, it does not take into account another kind of party – the political party. In the ongoing controversy too, while a lockdown party may have lit the fire, the fate of Johnson’s term in office lies in the hands of his political party.
Parties and Party Leaders
As more Conservative MPs come forward against Johnson, eyes have now turned to an internal committee of the Party – the 1922 Committee – consisting of Conservative backbenchers, often referred to as “the men in grey suits”. In purely legal terms, Johnson is not bound to leave even if he is removed from the position of party leader unless he loses a vote of no-confidence on the floor of the House, as currently regulated by the Fixed-term Parliaments Act 2011. Therefore, one may argue, intra-party processes of party leadership selection should not be understood as a substitute for parliamentary procedures. However, this formal constitutional distinction between the position of PM and party leader is far from the deeply entrenched logic and practice of parliamentary democracy in the UK. The emergence of mass democracy over the nineteenth and twentieth centuries has fundamentally shifted representative capacity from individual representatives to party organisations. Political competition has essentially turned into a contest between national parties. As Ivor Jennings put it, the general election, which in theory is a series of 650 local elections, is “in fact a battle between the two national parties”. As a result of the arrival entrenched party loyalty among the electorate, the MPs, in large part, owe their election to the party machinery. Individual MPs are no more the sole repository of democratic legitimacy.
Despite the silence of constitutional theory, the actual functioning of parliamentary democracy is unimaginable without parties. The logic of mass democracy, when combined with a parliamentary form of government, requires cohesion between the organisational and parliamentary wings of the party. One of the principal methods in which significant parties seek to achieve such cohesion is by entrusting the leadership of both wings of the party in one person. This logic is also reflected in the political practice of both major parties in the UK: one becomes and serves as the PM or the Leader of Opposition by virtue of being the leader of a political party. In Conservative and Unionist Central Office v Burrell, a case concerning tax obligations of the Conservative Party, Lawton LJ observed that the Party leader who is at the apex of both – parliamentary party and party organisation – is ‘keystone of the bridge’ between the Conservative MPs and party organisation. This fusion between party organisation and the party-in-government takes a different form in some region-specific parties. For instance, the Scottish National Party separates its party leader from the Westminster parliamentary party leader; but the party leader is the leader of the devolved administration, as First Minister of Scotland.
Therefore, the party leader has come to be inextricably linked to the office of the leader of the government. Resultantly, apart from general elections, the PM could be forced to leave only through a change of party leader. At times, the PM may pre-emptively resign to avoid a prospective defeat in an intra-party process. Intra-party forums, not Parliamentary processes, tend to be the site of action for the removal of the PM. Given that the control of the party may automatically result in control over the executive power, the consequences of the intra-party process of selecting and removing leaders are not limited to the organisational life of the party; it extends to the core constitutional question of how we should choose the government.
There may be two responses to the relocation of power from Parliament to parties. Since parties distort the classical formulation of the parliamentary system, it may be argued, the intra-party activities replacing parliamentary processes, are constitutional anomalies. To protect the sanctity of Parliament, then, our response should be to curtail the role of political parties in constitutional processes. The other approach, which I submit is more fruitful, is to consider regulating intra-party processes more seriously from a constitutional standpoint. The latter response does not consider parties as undesirable distorters of the constitutional system, but appreciates their constitutional role and seeks to incorporate them in constitutional law.
Despite the constitutional importance of party leaders, parties conduct their leadership elections without meaningful legal oversight. Currently, at least in both major parties of the UK, the process can be altered by a small group of party office bearers. The control of the leadership selection process by a small group of party elites can raise two concerns: first, it leaves the process vulnerable to manipulation by incumbents to entrench their control over the party. Moreover, as we are witnessing in the Johnson affair, intra-party affairs can sometimes substitute for parliamentary procedures. If government selection is wholly left to parties, the most fundamental aspects of constitutional accountability would depend on which party is in power. For instance, if the PM belonged to the Labour Party, we may be looking at a significantly different process to remove the PM. For instance, in 2016, when Jeremy Corbyn lost the confidence of Labour MPs by a wide margin, he refused to step down as the leader of the party as the Labour Constitution does not recognise the process of no-confidence motion to remove the leader. According to party rules, a sitting party leader, even if the party is in government, can only be challenged for an election in an annual party conference by another contender.
Removal of the party leader is only one half of the story; the other half is the process of selection of a new leader. Both the Conservative and the Labour Party constitutions lay down a two-step process for the selection of party leader: nomination and election. The constitution of the Conservative Party entrusts the Executive Committee of the 1922 Committee with the responsibility to nominate candidates, who will then be presented to the rank-and-file members of the party for election. Unlike the Conservative Party, the gate-keeping function of nomination in the Labour is not restricted to parliamentary party. The constituency labour associations or affiliated organisations, provided they cross a numerical threshold, can also nominate candidates.
Given that the leadership removal and selection processes can have significant constitutional consequences, should the law have any role to play in leadership removal or selection processes?
Taking Leaders Seriously
In the UK, like in most Westminster-style parliamentary systems, the leadership selection process is considered the private affair of political parties, shielded from legal accountability. The legal conception of parties as unincorporated associations and party rules as contractual documents limits the possibilities of legal accountability, entrusting parties with broad autonomy to determine their internal processes. In legal terms, party leadership is considered akin to officer-bearers of a sports club. Even in a few instances where leadership contests were subject to legal challenges, such as the 2016 Labour leadership election, the courts were severely constrained by common law doctrines restraining discretionary powers granted under party rules – a contract for legal purposes.
Although the courts can intervene to subject the discretion of party authorities to the tests of arbitrariness, irrationality or capriciousness, they cannot limit the party’s ability to determine its rules. The parties may organise their leadership selection in a completely exclusive, or even authoritarian manner; alternatively, they may be very inclusive in choosing the party leader. So far as political parties specify the process in their rules, the court’s role is negligible. The absence of clear statutory guidance, coupled with a judicial reluctance to enter into partisan politics, makes any meaningful legal accountability of the leadership selection process evasive.
The statutory and regulatory silence on the selection of party leaders is surprising. At least in the UK, the role of party leaders is not restricted to the proverbial four walls of party organisation but extends to the very heart of the constitutional process. The legal silence produces an anomaly where influential political processes – party leadership contests – are shielded from legal accountability, while the constitutional legal procedures do not always tend to be the actual sites of action. Arguably, there is a strong case for (at least) minimal legal regulation of the leadership election of the two major parties, mainly where the removal or selection of leader is likely to result in the change of a constitutional functionary, such as the PM or the Leader of Opposition. In the UK, the removal and the selection of party leaders should not only be understood as a constitutional process but should also be subject to legal accountability.
What should such regulation entail? For instance, most importantly, such regulation will have to tackle the question of the selectorate: who should select party leaders? It may include all supporters (not just members) of the party, or it may be more exclusive, being restricted to the parliamentary party members. An extremely exclusive process would entrust the succession decision with the collective elite leadership of the party. The personalistic parties may be completely authoritarian, where the decision of leadership succession lies in the hands of the current party leader. As it is clear, the answer to the question — who should get to remove or select the party leader — is not an easy one to answer. Therefore, it is essential to acknowledge that the selection process cannot be a one-size-fits-all affair for all parties. The law would, thus, have to ensure minimal level of uniformity, protection against entrenchment by party oligarchy, and participation. At the same time, it should provide adequate leeway to parties to respond to their political needs. The demanding job of drawing such lines does not mean that the processes of removing or selecting constitutional functionaries may completely escape the radar of legal accountability.
The critical pushback against any legal interference is likely to be that we should preserve the autonomy of political parties from state regulation. This pushback sees parties as a part of civil society, whose freedom of association is essential to protect the political rights of citizens. This criticism fails to acknowledge that parties are not like other civil society organisations. While other organisations may also link citizens and states, parties are the only organisations that provide an unbroken institutional linkage between civil society and state institutions. The freedom of association of parties should not be understood in isolation from the constitutional roles they perform. However, this does not mean that parties should be treated as state institutions or public authorities. We can regulate specific intra-party processes of constitutional importance, such as leadership selection, while maintaining parties’ associational freedom in other domains, such as freedom to determine their programmatic stands. Parties’ ‘private’ status should not preclude minimal legal regulation of some of their internal processes. Apart from the substance of regulation, it also raises the concern of who should regulate? The legal regulation, however, should not be equated with judicial determination. Finally, a paradox lies at the heart of any reform suggestion of political process, and particularly that of political parties – it may rely on the politicians to constrain their freedom. However, at times, whether in self-interest, or under democratic pressure, legislators may seek to reform the very political parties that they owe their political careers to. Nurturing a functioning party system is essential to the functioning of constitutional democracy. The democratic entrenchment of mass parties over the twentieth century should call us to reconceptualise intra-party processes from merely civil society affairs to matters at the heart of the constitutional system. Party, in other words, is not over.
Aradhya Sethiya is a PhD candidate at the University of Cambridge.
(Suggested citation: A. Sethiya, ‘The party has just begun: The party leader and the UK constitution’, U.K. Const. L. Blog (14th February 2022) (available at https://ukconstitutionallaw.org/))