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Constitutional curiosities

Where do Truss and Sunak stand?

One of the mildly interesting factoids to emerge from the slow-motion car crash that terminated the Johnson government concerns a letter to The Times which, it somewhat surprisingly turns out, forms a semi-formal part of Britain’s uncodified constitution.

During the tawdry final days of the tousle haired journalist’s unworthy occupation of Downing Street, there were worries that the Prime Minister — who famously suffers from neither excessive humility nor excessive scrupulosity — might have attempted to evade his political executioners by calling a general election.

This had the potential to cause a constitutional crisis

This had the potential to cause a constitutional crisis. In an unprecedented fit of legislative competence, the government in March passed the Dissolution and Calling of Parliament Act 2022, which revived the Queen’s prerogative power to dissolve parliament by proclamation. Of course, like almost all of Her Majesty’s formal constitutional powers this is generally exercised on the advice of the Prime Minister. As an impeccably constitutional sovereign, the Queen bows to convention and routinely grants such prime ministerial requests. Surely though, a request by Johnson that she dissolve parliament for the purposes of avoiding his own resignation would have been a moral — if not legal — abuse of political power, and would have dragged the monarch into the world of intra-party power struggles.

And so, those of us masochistic or spiteful enough to follow the hour-by-hour weakening of Johnson’s grip on power, were reminded of a letter to the editor of The Times published in May 1950. 

This letter was written in the febrile weeks after the 1950 General Election. The Attlee government’s majority in the House of Commons had been reduced from one hundred and forty-six to a tissue-thin post-election majority of five. There was naturally speculation about how long the government could survive on so unstable a basis. At some point, Attlee would have to go back to the country.

There was significant public speculation as to how readily the weakening George VI would grant a snap election. To set out the Palace’s understanding of its proper constitutional role, the King’s Private Secretary Sir Alan Lascelles (portrayed as “Tommy” Lascelles by Pip Torrens in Netflix’s demi-historical The Crown) wrote to The Times under the rather arch pseudonym “Senex”.

Lascelles noted that Prime Ministers merely request a dissolution. He further explained it is the personal choice of the Sovereign to grant or refuse that request, and to take informal advice on the matter; finally, though, he noted that a “wise Sovereign”, who “has at heart the true interest of the country, the constitution, and the Monarchy” would only deny a dissolution on very specific and limited grounds.

Those grounds were that Parliament were still “vital, viable, and capable of doing its job”; that an election would be “detrimental to the national economy”; and that the Sovereign could find another Prime Minister capable of maintaining HM Government with a working majority in the existing House of Commons.

Like other constitutional conventions, the Lascelles Principles enumerated in the letter to The Times are not laws. They are not enforceable in the courts. Her Majesty can, legally speaking, grant or refuse a Prime Minister’s request for a dissolution at will. Instead, they reflect the very real political, cultural, and indeed moral limits on the exercise of political power in the Westminster system. The letter to The Times spelled out and clarified these limits, which had developed organically over time. And so, Lascelles’s “wise Sovereign” knows and recognises these limits to her power.

Last month, another letter appeared in The Times. Professors Meg Russell and Alan Renwick, of University College London’s “Constitution Unit”, called for five questions on “propriety and integrity” to be put to Rishi Sunak and Liz Truss. Russell and Renwick want to see that the candidates know and recognise similar limits to their own potential power.

The questions are themselves sensible, covering the Committee on Standards in Public Life, the rule of law (including international commitments), and parliament’s scrutiny of executive powers. After the confusion and controversy of the Johnson years, some clear indications of the next Prime Minister’s understanding of basic norms would be useful. A more competent journalistic class would be constantly querying the candidates over these concerns (alongside the crushing cost of living crisis).

A longer version of the letter was published as a post on the Constitution Unit blog. It’s worth picking through a few of its claims.

The fourth question, in particular, broaches the kind of constitutional convention we’ve been discussing so far. It demands of Truss and Sunak, “Will you abide by long-established constitutional norms?” 

Some of the specific grievances aired here clearly are to do with long-established norms, in particular the duty of the Prime Minister not to drag the Sovereign into undignified and destabilising party-political games.

Others, however, don’t fall quite so clearly under the rubric of “long-established constitutional norms.” One complaint has to do with the liberality with which Johnson bestows peerages, charging that the Prime Minister has appointed “numbers of peers well in excess of the recommendations of the cross-party committee on the size of the House of Lords” established by Lord Fowler. 

Yet this committee was established as recently as 2016, publishing its first report the following year. It is hard to see how this counts as “long-established”, particularly in the context of Britain’s long constitutional history. The committee also recommended that new appointments be for fixed, non-renewable 15-year terms; a cap on the size of the House; and a gradual reduction to 600 members. Is Johnson breaking some sacred norm in failing to abide by these mere recommendations? It is unclear why this committee should be implicitly elevated to being a creator of constitutional conventions.

Likewise, Johnson is castigated for the attempted five-week prorogation in the autumn of 2019, which was subsequently deemed unlawful by the Supreme Court. Leaving aside the question of that judgement’s correctness (which has been elegantly defended by Lord Sumption, hardly a shrinking violet when it comes to watchfulness against judicial activism), it certainly did not seem  in 2019 to be a clear-cut, long-established constitutional convention that prorogations could not be deployed politically. 

Indeed, when the High Court heard the Miller II case in September 2019, the Lord Chief Justice of England, the Master of the Rolls, and the President of the Queen’s Bench Division together ruled that the prerogative power of prorogation was not justiciable. Indeed, they opine (54) that “There is not even a constitutional convention which governs the matter [of a prorogation’s length].”

Attlee, for example, employed a one-day prorogation in 1948 to rush what became the Parliament Act 1949 through the three parliamentary sessions required by s.2 of the Parliament Act 1911. This was not quite within the spirit of the 1911 legislation; that curosry prorogation was clearly a matter of political expediency (see Miller II, 55).

There are other, evolving conventions which merit attention

There are other, evolving conventions which merit attention. The so-called Sewel Convention states that parliament will “not normally” legislate on devolved matters for Scotland, Wales or Northern Ireland. But that “normally” might be sorely tested over the coming years, given the scale of threats currently posed to the integrity of the United Kingdom by Sinn Féin and the SNP. Westminster certainly retains the legal right and power to legislate; do the candidates have views on this dangerous question?

Similarly, one of the gravest matters facing a Prime Minister concerns the violent use of Her Majesty’s armed forces overseas. In theory, this remains a prerogative power of the Crown. Yet for political reasons Blair secured the support of the Commons for war in Iraq in 2003. A House traumatised by Iraq refused to sanction use of the RAF in Syria when Cameron asked for its support in 2015; lacking their political backing, Cameron did not deploy British forces. Is this an emerging convention? Should it be? Do the candidates have views on this issue of the highest constitutional and moral importance?

Perhaps the most pertinent constitutional backsliding which needs to be addressed relates to claims made by Johnson allies that the Prime Minister enjoyed some kind of personal mandate independent of his majority support in the House of Commons. This, as has been argued repeatedly elsewhere in this magazine, is a presidentialising aberration in the British parliamentary system. Will the candidates disavow such claims? And, given Britain is currently lumbering into the energy crisis with an unresponsive, lame-duck caretaker government, are there grounds also for returning elections to party leaderships — at least while in office — to MPs? 

If we’re worried about recent damage to the constitution, then underlining the Sovereign and a Commons majority as the only proper sources of political legitimacy in the British political system is an urgent necessity. Can Truss or Sunak publicly affirm this? They might write a letter to The Times.

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