And so the United Kingdom has a new Prime Minister, replacing one who, having besmirched the office, had been forced out.  The Conservatives took almost eight weeks to choose Liz Truss.  That saga resembled a presidential election, not least in the televised debates that were occasionally as unedifying as they were uninformative, and notoriously in some of the vicious briefings given by unnamed allies of the candidates about their opponents.  Not for the first time the British parliamentary system surrendered the choice of premier to a small section of the British electorate.  But their preference was not the same as that of Tory MPs, who had consistently voted for Rishi Sunak as their first choice.    

It is for the political parties to decide how to elect their leaders.  But should the votes of others than MPs be part of their electoral systems?  I think not, and I never have.  Are there constitutional and political problems caused by such systems?  I say that there are.  In explaining myself I’ll concentrate on the Conservatives, given that their election is freshest in our minds.

Electing a leader

The Labour Party has always elected its parliamentary leader.  The Liberal Party adopted a voting system in the 1930s.  The Conservatives were the last to embrace such democracy, in 1965.  In all three parties voting was restricted to their MPs, which would at most be a few hundred people (and in the Liberals’ case what became a mere handful).  It was taken for granted that MPs were uniquely fitted to choose the best leader. 

The voting methods used by the parties have gone through a number of changes, but now they all give a decisive say on the leadership to people outside Parliament.  Several reasons were advanced for stripping MPs of their exclusive voting rights.  Limiting the electorate to MPs in a party that had hundreds of thousands of paid-up members was thought to be unsustainable.  It failed to give any say to those vast numbers of party members throughout the country who voluntarily did so much to sustain, fund, and promote their parties.  In Labour’s case, the trade unions – which had given birth to the party – were thought by the late 1970s to be entitled to a significant say in the choice of leader.  The Liberals had a very strong case to extend the leadership franchise.  Throughout the 1950s and 1960s they had only six or so MPs.  Restricting the choice of leader of the party to so few was absurd. 

Today the Conservatives have the well-known two-stage system, with MPs selecting two of their number through knock-out ballots, and then presenting the duo to the party membership to elect the new leader.  Labour has a one-member, one-vote process in which each person has a vote, cast by post or electronically.  That process replaced the electoral college that had been in place between 1981 and 2014.  The Lib Dems poll all paid-up members in a postal and electronic ballot. 

But what about the constitution?

The 2022 Conservative contest highlighted several constitutional problems with the party leadership rules, which are not confined to that party. 

First, Rishi Sunak came first in all five ballots of Tory MPs, beating as well as all the serious candidates the no-hopers, some of whom, by having a few moments in the limelight, thought that they would burnish their credentials for a ministerial job or a promotion.  In the last of those ballots, which was between Sunak, Liz Truss, and Penny Mordaunt, he got 137 votes, Truss 113, and Mordaunt 105 – that’s 242 not for Truss, and 113 for her.  Despite Sunak being the choice of the parliamentary party, however, the Conservative grassroots elected Truss by 81,326 votes to Sunak’s 60,399, roughly 57% to 43%.  That was a narrower victory than had been expected.  Indeed, it was the smallest final majority achieved by any of the five Conservative leaders who have been elected by the party in the country – the “voluntary party”.  In fact that wasn’t even a majority of eligible voters, because about 18% of them had abstained.  Obviously Truss had gone to the membership without the backing of most Tory MPs.  Applying the constitutional convention that a Prime Minister must have the support of a majority in the House Commons, Truss, at least at that stage, failed to satisfy it.  No doubt that objection will be answered by Conservative MPs backing her now, and for now, however reluctantly, rather than risk losing a Commons vote of no confidence and a resulting General Election.  True, that situation is not unprecedented.  It happened in 2010 when Ed Miliband was elected Labour leader and Leader of the Opposition thanks to trade union votes, his brother David having been the clear choice of Labour MPs.

The second problem is that the person so elected does not have to cure the ill just outlined by asking the House of Commons to express explicitly its confidence in the new Government.  If Truss does not seek such a vote, she would be following the precedent set by others who took over a Government from a colleague who had resigned.  But is that precedent one that should be scrapped?  I think that it should in this kind of case.  It would fully meet the constitutional problem already outlined.

Thirdly, the argument that a choice made by an eligible electorate of just over 172,000 members of the voluntary party is more democratic than one taken by a few hundred MPs is spurious.  It assumes that the qualities enjoyed by the two groups are the same.  They are not.  MPs know the candidates much better than most grassroots Conservatives.  They have seen them in action in the Commons and elsewhere, and MPs know what is needed in an effective parliamentary and party leader.  MPs have a grasp of the strengths and weaknesses of the candidates.  Some will have worked with them in government.  MPs are, of course, answerable to their constituency parties, and would be foolish not to take their views into account, even if in the end they come to different views on who would be the best person for the job.  In this context all votes are not equal. 

Fourthly, the old maxim that the Queen’s Government must be carried on barely applied during the extended period of the election.  The incumbent announced that no major policy initiatives would be taken pending the transfer of power.  That would usually have been an acceptable position, with in effect a caretaker Government dealing only with routine business.  But from Johnson’s graceless resignation speech on 7 July 2022 until Truss became Prime Minister on 6 September the Government went – or at least gave a very good impression of going – into stasis.  It was a do-little Government, and in Johnson’s case an apparently do-nothing Prime Minister.  Indeed, he went on two overseas holidays, each of a week, during the campaign.  In happier times this would have mattered less, but the country was enduring several national emergencies (about which the civil service was working hard to prepare policy options for the new Prime Minister).  The rising cost of living and soaring inflation, for many people unpayable and ever-increasing energy prices, an NHS just about coping (even in the summer months), and so on, were answered by the sitting Prime Minister casually passing the buck to his successor.  Millions of people had to endure agonies of worry for two months over how they were going to make ends meet, especially this winter.  Both Truss and Sunak insisted that they would wait until they entered Number 10 before giving details of what they would do to ameliorate matters.  Now, it could be that this irresponsibility might be unique to this particular transfer of the premiership.  It might never happen again.  But who knows?  What is clear is that if MPs alone had had the sole franchise then at least these emergencies would have been addressed more quickly, and the unimaginable, and perhaps for many the unbearable, strains might have lasted for a much shorter time.  Certainly Britain would have had a fully functioning Government much sooner than was the case.

Finally, during the former Prime Minister’s two holidays it was unclear, at least to the public, who was actually in charge of the Government.  Some of the press said that he remained in command, but Number 10 denied that Johnson was working while he was abroad.  The then Deputy Prime Minister, Dominic Raab, said nothing of which I’m aware about his role, if any, during those times.  Perhaps he was unobtrusively minding the shop – but if he wasn’t, who was?  (Sir Humphrey Appleby’s answer is easy to imagine.)

Political costs

In case anyone wishes to dismiss those problems as being merely a constitutional lawyer’s pernickety points, there are political dangers inherent in having leadership elections that extend the electorate beyond a party’s MPs. 

Most Conservatives must now regret having such a drawn-out campaign.  If, though, it had been taken place during easier times;  if it had been conducted in a more comradely fashion;  had it not been so divisive as a consequence, then that might have made the campaign itself less unattractive.  In future contests it would clearly be in the party’s interests to avoid such a long dispute between rivals.

The contest was a gift to the opposition parties, who were supplied by Sunak and Truss with ammunition to use against the Government of which they had been (in his case) or were (in her case) members.  Optimistic Conservatives might hope that next time – whenever that may be – things will be better, but that is possibly the triumph of hope over experience.  Grassroots Conservatives who are jealous of their voting rights should weigh them against the reputational damage done to their party by such caustic fights.  That helped the Labour Party especially.  During the campaign Labour had a double-digit opinion poll lead over the Conservatives.  The British electorate was treated to the spectacle of a party riven over policies, especially on what to do about the cost of living emergency.  It is a political axiom that voters don’t vote for a party that is divided.  In that case any opinion poll bounce that the Tories might enjoy with a new Prime Minister could dissipate quite quickly.

Opinion polls showed that Johnson would have been the clear choice of the voluntary party had his name been on their ballot papers.  Partly that was because some Conservatives have tried to rewrite history.  The false narrative has it that this admirable Prime Minister had been stabbed in the back, despite him having delivered an 80-seat majority in 2019, and having got “all the big policy decisions right.”  The truth is that his Ministers had tired of having each day to defend the indefensible, and they knew that his time was up.  They stabbed him in the front.  Waves of resignations had taken place:  thirty-one of his Ministers quit – a third of the Government – along with a large number of Parliamentary Private Secretaries, before Johnson grudgingly accepted that he must go.  He brought himself down.

Especially because of the constitutional arguments outlined earlier, reinforced by those political points, it remains my firm view that Conservative and Labour leaders – who alone will provide every Prime Minister – should be elected by their respective MPs alone.

“This demands a General Election”

In her leadership acceptance speech Truss ruled out an early General Election by saying that she would lead the party to victory in 2024.  She was following the stance adopted by her predecessors in the same situation.  She will take the manifesto on which the Conservatives won the 2019 election, and her own election as leader, as constituting all the authority she needs to carry on without troubling the electorate for its view.  In so doing she would be following (in the most recent examples) Johnson himself in 2019, May in 2016, Brown in 2007, and Major in 1990.  If Truss armours herself that way in constitutional precedent to fend off demands for an election, she would, however, overlook her lack of support from Conservative MPs.  At no stage, as noted earlier, did she lead in any of the ballots of her parliamentary colleagues – and her margin of victory over Sunak in the voluntary party was not as strong as she had hoped.  All that reinforces my view that, in cases such as this, the new Prime Minister should seek an early vote of confidence in the House of Commons. 

A final thought

Johnson could not have stood as a candidate in the campaign because he had resigned the leadership:  by doing so he was barred by the Conservative Party’s leadership election rules.  But nothing in those rules prevents him from standing in later party leadership elections, assuming that he was still an MP.  Given the astonishing constitutional and political events that have happened in the last few years, who would confidently dismiss that possibility as a complete flight of fancy?  He doesn’t, and like Trump hopes to be back. 

Rodney Brazier is Emeritus Professor of Constitutional Law in the University of Manchester

(Suggested citation: R. Brazier, ‘No Way to Pick a PM’, U.K. Const. L. Blog (8th September 2022) (available at https://ukconstitutionallaw.org/))