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What are the implications of having the Foreign Secretary sitting in the House of Lords?

By Andrew Defty

The most surprising aspect of Rishi Sunak’s Cabinet reshuffle has been the appointment of the former Prime Minister, David Cameron, as Foreign Secretary. Cameron is no longer an MP and as it is a convention that government ministers sit in Parliament, he has accepted a seat in the House of Lords in order to enable him to take on the role.

Cameron’s appointment raises a number of interesting questions: about the ministerial career of former Prime Ministers; the appointment of Cabinet ministers from the House of Lords; and the implications of this for parliamentary scrutiny.

The political career of former Prime Ministers

David Cameron’s return to front line politics with a seat in the Cabinet is by no means unique but is relatively unusual. As has been widely reported, the last former Prime Minister to take a Cabinet post after leaving office was Alec Douglas-Hume, Conservative Prime Minister from 1963 to 1964, who served as Foreign Secretary under Edward Heath, from 1970 to 1974. Interestingly, Douglas-Hume had previously served as Foreign Secretary while sitting in the House of Lords before becoming Prime Minister. He gave up his seat in the Lords in 1963 in order to become Prime Minister, and for his second term as Foreign Secretary he sat in the House of Commons as the MP for Perth and Kinross.

Other former Prime Ministers who have taken on Cabinet roles after leaving office include Arthur Balfour, Prime Minister from 1902 to 1905, who went on to serve as Foreign Secretary, from 1916 to 1919 in the wartime administration of Lloyd George. Ramsay MacDonald and Neville Chamberlain were both given the opportunity to remain in the Cabinet after stepping down as Prime Minister, with the largely honorary role of Lord President of the Council. Although in Chamberlain’s case this was for only a short period until his death in October 1940.

In recent years, however, there has been a tendency for Prime Ministers to leave parliament completely shortly after leaving office. John Major, Tony Blair, Gordon Brown and most recently Boris Johnson all announced they were leaving the House of Commons shortly after the end of their premiership. Cameron’s appointment to the House of Lords is also relatively unusual. Although it had until recently been customary for former Prime Ministers to accept a seat in the House of Lords, Margaret Thatcher was the last former Prime Minister to do so. Of the seven former Prime Ministers currently alive, Cameron will be the only one sitting in the House of Lords, although two, Theresa May and Liz Truss, continue to sit in the House of Commons.

Why has David Cameron been given a seat in the House of Lords?

In order to enable David Cameron to be appointed to the Cabinet, Rishi Sunak has given him a seat in the House of Lords. Although there is no legal requirement for government ministers to sit in Parliament, it is a very strongly held convention. This is based on the principle that ministers must be directly accountable to Parliament and only members may answer questions on the floor of the House of Commons or the House of Lords.

It has been argued that the convention that ministers must be sitting members of Parliament limits the pool of individuals the Prime Minister can draw upon when making ministerial appointments. In a number of other states, ministers can be appointed from outside the legislature which arguably allows for a wider range of talented individuals to be drawn into the government. In the UK, a Prime Minister who wishes to make a ministerial appointment from outside Parliament does have the option of making someone a member of the House of Lords in order to make them available for ministerial office.

This practice is not particularly unusual. Gordon Brown made a number of direct ministerial appointments to the House of Lords including the former MP, Peter Mandelson, who left the Commons in 2004 but was elevated to the Lords in 2008 in order to become Secretary of State for Business, and Andrew Adonis who was appointed to the Lords in order to become a minister in the Department for Education and Skills. David Cameron himself appointed several business leaders to the House of Lords in order to give them ministerial roles, including Stephen Green, the former group chairman of HSBC and Ian Livingston, the former chief executive of BT. More recently, in 2021 the UK’s former chief negotiator for exiting the European Union, David Frost, was made a peer by Boris Johnson, and appointed as Minister of State in the Cabinet Office with responsibility for Brexit.

An alternative approach could have been to find a safe seat for David Cameron which would have allowed him to return to Parliament as a member of the House of Commons.  This would, however, be dependent on a safe seat being made available, possibly by an MP who was already planning to stand down at the next election. This may also have been a decidedly risky strategy given that the government has recently lost several by-elections in supposedly safe seats. In 1964, Patrick Gordon Walker was appointed as Foreign Secretary by Harold Wilson despite having lost his seat in the 1964 general election. He subsequently resigned after losing a by-election in a supposedly safe Labour seat. Moreover, while Cameron may be happy to take on the role of Foreign Secretary, he may not have been prepared to return to the day-to-day grind of fighting an election and being a constituency MP.

While it is not particularly unusual for governments to make appointments to the House of Lords in order to allow individuals to become ministers, it is relatively rare for members of the House of Lords to hold such senior ministerial office. There are usually somewhere between twenty and thirty ministers in the House of Lords, compared to around eighty in the House of Commons. Governments need to appoint ministers in the Lords to enable someone to speak in the upper House on behalf of each government department, but ministers in the Lords tend to hold more junior ministerial positions, as Ministers of State or Parliamentary Under-Secretaries. In recent years, the only member of the upper House who has routinely sat in the Cabinet is the Leader of the House of Lords.

This was not always the case. Up until the end of the nineteenth century it was common practice for Cabinet ministers, including the Prime Minister to sit in the Lords. The last Prime Minister to sit in the Lords was Lord Salisbury who left office in 1902, although the practice of appointing Foreign Secretaries from the upper House continued well into the twentieth century. Lord Curzon was Conservative Foreign Secretary from 1919 to 1924 and was widely expected to succeed Andrew Bonar Law as Prime Minister in 1923. He lost out to Stanley Baldwin in part because it was felt the Prime Minister should sit in the Commons. Lord Halifax was Foreign Secretary at the outbreak of the Second World War and, as noted above, the Earl of Home, was Foreign Secretary before renouncing his title, perhaps mindful of Curzon’s difficulties, to become Prime Minister in 1963. The last Foreign Secretary to be appointed from the House of Lords was Lord Carrington, who held the post from Thatcher’s election in 1979 until his resignation following the Argentine invasion of the Falkland Islands in 1982.

What are the implications of the Foreign Secretary sitting in the House of Lords?

Lord Carrington’s experience is perhaps revealing of the difficulties Lord Cameron could face. With Carrington unable to answer questions in the House of Commons, answering Foreign Office questions in the Commons was delegated to two junior ministers. In most circumstances this worked admirably well, but when the Falklands crisis erupted, MPs in the House of Commons did not conceal their anger at their inability to question the Foreign Secretary directly. In addition to being accountable to Parliament for their department, senior ministers play an important role in defending the government and the Prime Minister. Lord Carrington’s inability to provide the kind of support the PM needed in the House of Commons contributed to his decision to resign. Lord Cameron may be a useful and experienced ally to the Prime Minister in public and in the media but there is little he can do if things get sticky in the House of Commons.

Cameron’s appointment also means that there is real concern about the impact on parliamentary scrutiny of having the Foreign Secretary sitting in the Lords. The Foreign Secretary will not be available to answer departmental questions in the Commons, which come around about once a month. Nor will he be available to answer urgent questions, which are much more common now than they were when Lord Carrington was Foreign Secretary. In particular, if there is a major international incident which threatens international security or UK interests, the government’s response in the House of Commons will be provided by a more junior minister, who quite possibly does not attend Cabinet. Alternately if the situation is particularly grave, the Prime Minister may find himself delegating for the Foreign Secretary in the House of Commons. Which may appease the Commons but won’t make life easier for the Prime Minister.

The Speaker of the House of Commons was quick to make a statement about the need to ensure that parliamentary scrutiny of foreign policy is not undermined by Lord Cameron’s appointment:

[G]iven the gravity of the current international situation, it is especially important that this House is able to scrutinise the work of the Foreign, Commonwealth and Development Office effectively. I have therefore commissioned advice from the Clerks about possible options for enhancing scrutiny of the work of the Foreign Secretary when that post is filled by a Member of the other House. I also look forward to hearing the Government’s proposals on how the Foreign Secretary will be properly accountable to this House.

On the other hand, the Foreign Secretary will not avoid parliamentary scrutiny altogether. The House of Lords is likely to institute its own mechanism to provide regular questions to the Foreign Secretary. Moreover, there is considerable expertise in foreign affairs in the Lords, including several former permanent secretaries from the Foreign Office. As a new peer, Cameron will also be unfamiliar with the practices of the second chamber and will quickly realise that he cannot rely on the same level of support in the chamber as he once enjoyed in the more partisan House of Commons.

The Foreign Secretary will also not entirely avoid scrutiny by MPs. Although he can’t appear to answer questions in the chamber of the House of Commons, members of the House of Lords can appear before House of Commons select committees. He is likely to be much in demand from the House of Commons select committee on foreign affairs, as well as a number of joint committees which comprise members from both Houses, most notably the joint committees on human rights and national security and the Intelligence and Security Committee.

As a former Prime Minister, David Cameron is an experienced parliamentarian, but his ministerial experience is confined to that of being Prime Minister. He may find the role of Foreign Secretary and the demands of adapting to scrutiny in the House of Lords particularly demanding. It is also possible that the absence of a Foreign Secretary in the House of Commons may place increased demands on the government and even the Prime Minister himself. Both will be hoping that the benefits outweigh the undoubted challenges ahead.

About the author

Andrew Defty is Associate Professor of Politics at the University of Lincoln and member of the Lincoln Parliamentary Research Centre (ParliLinc).

This piece was first posted on Andrew Defty’s Who Runs Britain? blog.

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Post-Johnson, constitutional combustion continues. But the fire can be extinguished.

Our recent book, The Bonfire of the Decencies: Repairing and Restoring the British Constitution, analysed the turbulent 2019-2022 Boris Johnson administration from a constitutional perspective. It noted a worrying tendency. Johnson himself, and various ministers and officials in his government, were prone to disregarding norms. In pursuit of partisan advantage or personal gratification, they were often willing to bypass non-binding constraints to which those in their position should willingly subject themselves. Self-regulation is essential to the proper functioning of any political system; but is perhaps even more important in the case of the United Kingdom (UK), given its lack of a ‘written’ or ‘codified’ constitution. Its absence is therefore a serious concern.

We considered a wide range of trends and incidents. Among them were the so-called ‘partygate’ scandal; the UK approach to the Northern Ireland Protocol; efforts to intimidate and demean legal professionals; the dissemination of misleading information to Parliament and public; departures from good practice in the award of Covid-related contracts; the high turnover of senior civil servants; changes to the status of the Electoral Commission; and the troubling treatment of refugees. Taking these factors into account we identified a series of problematic categories of behaviour on the part of the Johnson governments. They were:

  • Poor conduct that did not necessarily violate any specific rule;
  • Departure from rules without clear legal basis such as conventions;
  • Unlawful activities of a constitutionally challenging nature;
  • Violations of criminal law by senior officials and ministers;
  • Willingness to break with treaty obligations and international law; and
  • The compromising of public institutions and the values associated with them.

Furthermore, as well as being prone to departing from and undermining norms, the Johnson administration also displayed a tendency to evade, belittle, or erode any mechanisms that might serve to limit it (such as Parliament, the courts, and other oversight bodies), particularly in its efforts to perpetrate constitutional violations.

We judged, moreover, that the transgressions that occurred under Johnson were part of a wider and longer continuum. Any relief that the ending of his term as Prime Minister might (understandably) arouse should not distract from a realisation that urgent and substantial corrective action is required. His mere departure has not reversed the damage caused during his premiership. Many changes brought about will remain in force until actively reversed, and initiatives instigated will continue to come into being unless halted. Forces, groups, and people that drove, sustained, and were harnessed by him in his anxiety-inducing conduct during this tenure can be expected to continue to exert themselves, potentially leading to further such harm.

We noted in our work that the post-Johnson UK government would inevitably include within it numerous individuals who variously tolerated, facilitated, defended, and took a prominent role in the patterns of behaviour that made his term of office so objectionable. Ultimately, his party turned on him. But the fact that it installed him as leader at all, and that it took so long to remove him, is not encouraging. The decisive revolt of July 2022 came only after the emergence of clear evidence that he had morphed politically from asset to liability, and growing resentment among colleagues who found themselves personally compromised by some of the dubious characteristics of his administration.

Events since the displacement of Johnson have served to reenforce these points. During the brief and remarkable tenure of Liz Truss, constitutionally dubious occurrences included the removal from post of the Permanent Secretary to the Treasury, Tom Scholar; and the attempt to evade proper scrutiny of fiscal policy. Collective Cabinet responsibility – a central component of the UK system of government – rapidly deteriorated to the point of becoming unviable. Under Rishi Sunak, we have already seen the reemployment of an individual as Home Secretary within days of their resignation from the same post, having breached the Ministerial Code. Furthermore, falling within the Home Office policy brief, the pursuit of questionable policies with regard to the treatment of refugees, inherited from previous governments, has continued and possibly magnified.

These developments are far from encouraging. But we do not wish to encourage despondency. There are a series of steps that can be taken that we hope will help restore, reenforce and reinvigorate our constitution. Some firm proposals are already on the agenda. They include recent recommendations from the Committee on Standards in Public Life that would serve to strengthen mechanisms for upholding the principles according to which government is supposed to operate, such as those set out in the Ministerial Code.

Other measures have yet to receive the same degree of advocacy, but in our view merit consideration. Among them is the idea of an oath of office for incoming prime ministers, to be made publicly in the House of Commons, in the presence of its Speaker. While it would not directly compel better behaviour, this practice might contribute to an improved culture of constitutional compliance. We suggest the following wording:

THE PRIME MINISTER’S OATH.

To uphold the principle and practices of collective Cabinet government

To uphold and respect the conventions and expectations contained in THE MINISTERIAL CODE, THE CABINET MANUAL, AND THE SEVEN NOLAN PRINCIPLES OF PUBLIC LIFE.

To sustain the impartiality of the Civil and Diplomatic Services, the Intelligence and Security Services, and the Armed Forces.

and to have constant regard for THE CIVIL SERVICE CODE AND THE SPECIAL ADVISERS’ CODE.

To account personally to Parliament and its select committees for all the above.

To uphold the rule of law in all circumstances.

Beyond this possible measure, consideration should be given to harder and more entrenched regulation through the establishment of a ‘written’ or ‘codified’ constitution. Such a document would become the ultimate source of legal authority within the UK polity, taking precedence even over the UK Parliament and primary legislation it issued. Establishing an instrument of this type would be a major undertaking, and need to rest on an inclusive and considered process. But it could, we hope, help correct the weaknesses in the system that have lately become apparent, and avoid repetition of some of the excesses of the Johnson era, and that of his successors. It might, moreover, be a means of extracting a lasting, beneficial outcome from recent negative experiences.

Andrew Blick is Professor of Politics and Contemporary History and Head of the Department of Political Economy at King’s College London and Senior Adviser to The Constitution Society.

Peter Hennessy, FBA, is Attlee Professor of Contemporary British History, Queen Mary, University of London.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.

This post was originally published by the Constitution Society and can be accessed here: https://consoc.org.uk/constitutional-combustion-continues/. We are grateful for being given permission to republish the post.

Follow the the society on Twitter at @con_soc

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How Sunak can restore integrity, professionalism and accountability

Meg Russell, Alan Renwick, Sophie Andrews-McCarroll and Lisa James argue that for Rishi Sunak to keep his promise to put integrity, professionalism and accountability at the heart of his government, he must strengthen the standards system, enhance parliamentary scrutiny, defend the rule of law, abide by constitutional norms and defend checks and balances.

In his first speech as Prime Minister, Rishi Sunak promised to put integrity, professionalism and accountability in government at the heart of his premiership. This promise is to be warmly welcomed – commentators and experts have raised consistent alarms about slipping constitutional standards in recent years, and research shows that the public care deeply about honesty and integrity in their politicians.

But what might such a pledge look like in reality? Against the backdrop of Boris Johnson’s resignation this summer, precipitated by concerns about his approach to standards, integrity and accountability, an earlier post on this blog issued five questions for the then leadership candidates to address on rebuilding constitutional standards and restoring integrity. The subsequent premiership of Liz Truss aptly demonstrated these questions’ continuing relevance. This new post returns to the five core tasks, links them to Sunak’s stated goals, and suggests what his government might do to meet them. It demonstrates close agreement with proposals by respected experts from other bodies in response to Sunak’s pledge.

  1. Strengthening the standards system

The system for maintaining government and parliamentary standards was placed under great stress during the Johnson premiership. Successive Independent Advisers on Ministers’ Interests resigned, ministers unwisely attempted to derail a House of Commons Committee on Standards investigation, and a Privileges Committee inquiry into whether Johnson himself misled parliament is ongoing. Truss’s subsequent claim that her personal integrity was a sufficient bulwark against standards breaches fell far short of the serious commitment to institutional arrangements needed to safeguard integrity.

Rishi Sunak’s commitment to appointing a new Independent Adviser on Ministers’ Interests, expressed during the summer leadership contest, and repeated by the Minister for the Cabinet Office, Jeremy Quin, yesterday in the House of Commons (albeit following the somewhat problematic reappointment of Suella Braverman), is therefore welcome and important. Sunak should also move to strengthen the existing system. The independent Committee on Standards in Public Life (CSPL) made recommendations last year to increase the effectiveness of the Independent Adviser, including by giving them the power to initiate investigations into alleged breaches of the Ministerial Code. This proposal, along with various others made by CSPL – such as placing more regulatory codes and roles on a statutory footing – is currently before parliament, via a private members’ bill introduced by Lord (David) Anderson of Ipswich. Providing government backing for the Anderson bill would be one clear and simple way for Sunak to demonstrate his commitment to integrity.

  • Rebuilding the scrutiny role of parliament

A further crucial mechanism for both professionalism and accountability lies in the scrutiny role played by parliamentarians. Recent years have seen increasing concerns raised about rushed legislation, the heavy use of delegated powers, evasion of select committee scrutiny, and the problems that these cause: both in terms of democratic principles and the increased risk of poorly thought-through policy. The Truss mini-budget was given only two hours for debate in the Commons, compared to the usual five or so days for a budget, despite the scale of its content.

Some of these problems can be addressed by setting clear expectations of ministers – for example, that they will prioritise select committee attendance. Others will require Sunak to address the mechanisms by which his predecessors limited parliamentary oversight of their policy-making. The Retained EU Law (Revocation and Reform) Bill, which is currently in the early stages of its parliamentary passage, offers an early opportunity to do this. Various experts have criticised the scale of the delegated powers that the bill would give to ministers, allowing thousands of pieces of law to be amended or scrapped with only minimal parliamentary oversight. The extent of the ministerial powers in the Northern Ireland Protocol Bill, currently before the House of Lords, has likewise caused alarm. It is probable that the House of Lords will seek to increase the parliamentary controls on the delegated powers contained in both bills; government openness to such amendments would be a further indication that the Sunak administration is serious about getting democratic accountability back on track.

  • Defending the rule of law

Integrity and accountability in government both demand a renewed commitment to the rule of law, and to respecting both domestic and international legal obligations.

Domestically, there have been attacks on the courts, as further outlined below. And ministers have too often resorted to using ‘ouster clauses’ to remove certain areas of decision-making from legal challenge.

Significant concerns have also been raised about the willingness of both the Johnson and Truss governments to risk breaching international law. The most high-profile instances of this have concerned their approach to the Northern Ireland Protocol. Sunak now inherits the Northern Ireland Protocol Bill, which began its life under Johnson and was championed by Truss. The bill, which is currently before the House of Lords, has been described as ‘not constitutional’ by the (Conservative) chair of the Commons Northern Ireland Affairs Committee, and as a departure from the UK’s international obligations by the chair (again Conservative) of the Commons Justice Committee. The Lords is expected to amend the bill significantly, at a minimum to raise the bar which ministers must meet if they wish to breach international law. Sunak should think carefully before whipping his MPs to vote against such amendments when they return to the Commons, and should put significant efforts in the meantime into finding a negotiated solution to the Protocol controversy.

  • Abiding by long-established constitutional norms

Also essential to integrity, professionalism and accountability is adherence to the conventions and traditions which underpin the UK’s political constitution. One important step would be a pledge to abide by the recommendations of the House of Lords Appointments Commission, which vets peerage nominees for propriety – which Johnson didn’t do. Sunak should also take care over the number of members appointed to the Lords – Johnson’s appointments (87 while in officeplus another 26 handed on to Truss, and others possibly to follow) flouted the recommendations of the committee established by the Lord Speaker to manage down the size of the chamber. Excessive prime ministerial patronage is deeply unpopular with the public, and Sunak should return to the standards of restraint established by Theresa May.

The Johnson government was also notable for its willingness to risk drawing the monarchy into political controversy – whether through the unlawful prorogation, suggestions in 2019 that he might ‘dare the Queen to sack him’, or his reluctance earlier this year to rule out requesting a dissolution of parliament in order to circumvent his removal from office by his own MPs. This indicated a willingness to push constitutional arrangements to their limits, and undermine the non-political status of the monarch. The Sunak government should resolutely avoid taking such risks.

  • Defending political institutions and checks and balances

Finally, a critical aspect of restoring professionalism to public life is repairing the relationships between government and the various constitutional actors which provide institutional checks and balances in policy-making. In addition to parliament, these include the courts, regulators and the civil service. One simple way of demonstrating respect for these institutions would be to avoid the kind of rhetorical attacks on the judiciary, legal professionals, and civil servants which appeared to be sanctioned by both Johnson and Truss. Sunak should also refuse to tolerate the scapegoating of senior civil servants – seen most recently through the unorthodox sacking of Tom Scholar.

The Johnson and Truss governments sought in particular to sideline institutions which they saw as defenders of ‘orthodoxy’. While policy disagreements are legitimate, attempts to shut down or circumvent potential critics are incompatible with professionalism in government. Such efforts were most recently evident in the Truss government’s attempt to bypass the usual independent economic assessments for its mini-budget, and strained relationship with the Bank of England – with very damaging effect. Sunak has promised a different approach, and this welcome recognition of the value of checks and balances should extend to other areas.

Conclusion

For Rishi Sunak to emphasise integrity, professionalism and accountability as central to his leadership is not only constitutionally sound, but also politically astute. Recent Constitution Unit research has shown that members of the public care deeply about honesty and integrity in their politicians. They support an independent and professional civil service, a stronger role for regulators, an ongoing, powerful role for the courts in preventing abuses, and deeper parliamentary scrutiny and accountability. There will be ample opportunities for Rishi Sunak to demonstrate his commitment to these principles in the coming weeks and months.

About the authors

Meg Russell FBA is Professor of British and Comparative Politics at UCL and Director of the Constitution Unit.

Alan Renwick is Professor of Democratic Politics at UCL and Deputy Director of the Constitution Unit.

Sophie Andrews-McCarroll is Impact Research Fellow at the Constitution Unit.

Lisa James is a Research Fellow in the Constitution Unit.

This blog post was originally published on the Constitution Unit’s Blog. We are grateful to the Constitution Unit for allowing us to republish the post. You can see the original post here: https://constitution-unit.com/2022/10/27/how-sunak-can-restore-integrity-professionalism-and-accountability/

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How did the Prime Minister win a vote in Parliament and lose her authority?

It is remarkable that after a series of U-turns on key policy announcements and the resignation of two senior members of her Cabinet, the event which may well have precipitated the Prime Minister’s resignation was a parliamentary vote on an opposition motion which the Government actually won.

To be sure, many would argue that the Prime Minister’s position was already untenable before Wednesday evening but any hopes of retaining office went downhill quickly following the chaotic mismanagement of a vote on a Labour motion on fracking. While the Labour Party may take some pleasure in contributing to PM’s downfall, much of the damage was self-inflicted.

What is an opposition day debate?

Wednesday was one of twenty afternoons set aside in each parliamentary session to debate issues raised by opposition parties. Although so-called opposition days allow the opposition to set the agenda, they rarely cause serious difficulties for a government which can command a majority in the House of Commons. A government with a majority can usually be assured of defeating an opposition motion. Moreover, even if the government loses a vote on an opposition day motion, in most cases these are not considered to be binding and the government is not obliged to make any changes in response. Consequently, government’s may even choose to ignore an opposition motion entirely and not bother voting at all. Opposition days do provide an important opportunity for opposition parties to raise issues of concern and possibly to embarrass the government by forcing its MPs to vote against something which may be popular, such as extending free school meals, but can’t generally be used to force the government to take action.

Labour’s motion on fracking was slightly different in that it included a clause which would set aside the standing orders of the House of Commons, which state that the government has control over parliamentary business. The motion then allowed for the opposition to take control of the parliamentary order paper at a later date (29th November) in order to bring forward a bill which would ban the use of fracking in the UK. This was an unusual tactic but reflects a similar episode during the Brexit debates in 2019, when a group of MPs took control of the parliamentary agenda in order to bring forward a bill to prevent a no-deal Brexit.

This was an interesting tactic by Labour, facilitating a parliamentary vote on the standing orders which can be changed by a vote in the House, rather than seeking to press the government to take action without any real power to compel it to do so. As a result, the opposition sought to turn a non-binding opposition motion into a resolution with real effects. This meant the government could not afford simply to ignore the opposition motion and cede control of the legislative agenda to Labour.

Moreover, Labour’s decision to focus on fracking was also key. The Prime Minister had proposed lifting the ban on fracking, but this is an issue on which Conservative MPs are divided. Not only was a moratorium on fracking included in the party’s 2019 manifesto, but several Conservative MPs  represent constituencies where plans for fracking have been subject to considerable local opposition. In short Labour sought to force Conservative MPs to vote against a key manifesto pledge and in favour of something which many of them oppose. By combining this with an attempt to take control of the parliamentary agenda, Labour effectively forced the government into a position in which it felt the need to whip its MPs to vote against the motion.

Three-line whips and confidence motions

While Labour might be seen to have laid a trap for the government, the chaos which followed was largely self-inflicted. The Conservative response was to issue a three-line whip, effectively compelling Conservative MPs to vote against the opposition motion or be subject to disciplinary action. Given the size of the government’s majority this should have been enough to defeat the motion. It is possible that several Conservative MPs would have abstained, some may even have decided to vote for the Labour motion, although this seems unlikely. Although this is a serious disciplinary matter, as several commentators have since observed, the penalty for abstaining on a three-line whip is unlikely to have extended to having the whip withdrawn and, if the MPs in question had particular constituency concerns, the government would usually have been sympathetic to their predicament.

However, at some point on Wednesday, the Government decided to make this a confidence motion, implying that if the government was defeated it would be forced to resign and call a general election. Although set piece votes, such as those on the Queen’s speech or the budget are generally considered to be confidence issues which the government must win, the government can declare any vote a matter of confidence. It was, however, a considerable escalation of the stakes to make a vote on an opposition motion on such a divisive issue a confidence vote.

Ironically opposition days can be used to table motions of no confidence in the government and unlike most opposition day motions these are considered binding. Given the difficulties facing the Truss government Labour may well have considered this, but perhaps dismissed the idea on the grounds that a confidence motion was more likely to unite Conservative MPs around their leader. By choosing to turn a vote on which its MPs are divided into a confidence vote, the Conservative leadership, however, managed to create a level of disruption which the Labour opposition could not hope to have achieved simply by tabling a confidence motion. MPs who might reasonably be allowed to quietly abstain on an issue which was particularly sensitive in their constituencies, were now being asked to put their own re-election chances on the line to prop up the Prime Minister.

It is not clear why the government chose to do this. One must assume that Conservative whips felt that a three-line whip was not enough to ensure victory and there was a real danger that Labour would win the vote. It is also worth considering the wider implications of a Labour victory. If Labour had been successful in seizing the agenda and bringing forward its own legislation on this issue, it might well have repeated the trick on subsequent opposition days, significantly disrupting the government’s own legislative agenda.

It’s hard to know what intelligence Conservative whips had about the scale of the potential backbench rebellion on the Labour motion but there is very little evidence that a sizeable and damaging rebellion was impending. On Wednesday afternoon less than a handful of Conservative MPs publicly stated that they could not vote with the government on this motion, and most of the dismay on Conservative benches revolved around the fact that the government had chosen to make this a confidence issue.

Confusion in the chamber and in scuffles in the lobby

The government’s problems were compounded by the handling of the issue as the day progressed. Having decided to make this already divisive issue the one on which the Truss government would survive or fall, someone in number 10 got cold feet and decided not to risk it. The minister closing the debate at the despatch box, Graham Stuart, dismayed the House by stating that ‘quite clearly, this is not a confidence vote’, repeating ‘obviously this is not a confidence vote’. Stuart was asked to clarify this by the Conservative MP, Ruth Edwards, who stated ‘many of us have been told today by our Whips that if we vote for, or abstain from voting against, this motion, we will lose the Whip.’ His response, ‘that is a matter for party managers, and I am not a party manager’ was hardly a lesson in clarity.

The effect of this was twofold. There was clearly some confusion as to whether this was a confidence issue. Stuart’s initial statement that it was not a confidence issue was arguably clear, but his follow up did little to settle the matter, particularly for MPs who had been told all day by the whips, presumably in the most robust terms, that they must vote with the government to prevent a general election. Secondly, it is apparent that this last-minute change had not been communicated to the whips, effectively undermining their authority. As Conservative MPs made their way into the division lobbies there were reports that the chief whip and the deputy chief whip had both resigned, and for several hours afterwards the government was unable to confirm if either were still in place.

There were also reports of an unseemly row between Conservative MPs in the division lobby. A groups of Conservative MPs, including cabinet members, were accused of physically manhandling at least one reluctant Conservative MP into the lobby in support of the government, prompting the speaker to launch an investigation into bullying.

To compound the confusion, in the commotion in the division lobbies it is apparent that several MPs failed to record their vote using the electronic card readers when entering the lobbies. For a time it appeared that the Conservative rebellion was even greater than it eventually proved to be, and perhaps most remarkably, that the Prime Minister had not voted.

In the end the Conservatives won the vote with some ease. The Labour motion was defeated, it was later announced that the whips had not resigned, and the record was corrected to show that the Prime Minister had voted with most of the rest of her party. Thirty-two Conservative MPs abstained, although some of these will have had permission to miss the vote and will presumably have been paired with an opposition MP who was also missing.  In a bizarre coda at 1.30 in the morning Downing Street issued a statement that although the vote had not been a confidence issue, it had still been a three-line whip and those who did not have a reasonable excuse for their absence would face ‘proportionate disciplinary action.’ It is not clear if this process had begun by the time the Prime Minister resigned twelve hours later.

With its fracking motion Labour presented the government with a knotty problem, which certainly required careful handling. Instead, the government contrived to alienate its own embattled backbenchers by selecting the nuclear option and making it a confidence vote. It then further alienated them by changing its position only minutes before the vote took place. The melee in the division lobby only added to the sense of confusion and lack of control at the heart of government. That the government won the vote is largely irrelevant, as in the process it lost what remaining credibility it had amongst its own MPs. The episode is a remarkable example of the importance of party management in the House of Commons and that opposition parties do not necessarily need to win a parliamentary vote in order to undermine the government.

Dr Andrew Defty, Associate Professor of Politics at the University of Lincoln 

This post was originally published on the Who Runs Britain Blog and can be found here: https://whorunsbritain.blogs.lincoln.ac.uk/2022/10/21/how-did-the-prime-minister-win-a-vote-in-parliament-and-lose-her-authority/

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The Prime Minister, the Parties, and the Ministerial Code

By Professor Michael Gordon

The current Prime Minister’s long running battle with the Seven Principles of Public Lifecontinues to gather pace.  Boris Johnson’s actions relating to the pandemic ‘partygate’ scandalhave arguably violated each of the principles established by the Nolan Committee in 1995:  selflessness, integrity, objectivity, accountability, openness, honesty and leadership.  The Prime Minister’s full house of ethical violations concerning his attendance and subsequent denials of social gatherings held in Downing Street, contrary to lockdown restrictions, have also yielded Fixed Penalty Notices from the police for him, his Chancellor, his wife, and other government officials, with the prospect of more to follow.  Yet the Prime Minister remains committed to staying in post, and has refused to resign.

A key accusation made against Johnson by Peter Hennessy (the historian and now member of the House of Lords) is that his actions during the partygate scandal, combined with his refusal to resign, have ‘shredded the Ministerial Code’, generating ‘the most severe constitutional crisis involving a Prime Minister that I can remember’.  Similarly, the political journalist Robert Peston has argued that if Conservative MPs refuse to topple Johnson, they will ‘blithely ignore the ministerial code’, with the consequence that ‘the constitution means little or nothing’.

It is of course understandable why the Ministerial Code has had such prominence in this episode – it is a relatively clear, succinct, and publicly accessible statement of some relevant rules and principles concerning ministerial conduct.  The very idea of a ‘Ministerial Code’ sounds constitutionally important, and also effectively highlights the hypocrisy of Johnson apparently refusing to adhere to the standards applicable to ‘ordinary’ ministers, given the Code is formally issued in each new Prime Minister’s name accompanied by a personalised foreword preaching about the importance of upholding ‘the very highest standards of propriety’ (2019).

Yet the pre-eminence of the Ministerial Code in debates concerning the Prime Minister’s conduct also raises some important questions.  In particular, in this blog post I want to consider whether the Ministerial Code is the best reference point by which to assess the Prime Minister’s actions, and what impact its central status could have on the debate around whether the Prime Minister should resign.

There are two key issues which make it questionable whether the Ministerial Code should be the primary tool for critiquing the conduct of the Prime Minister.  First, the fact that the authority of the Code flows from the Prime Minister, and is therefore a statement of constitutional principles derived from the executive.  Second, the specificity of the Code – and especially the rules concerning the provision of accurate information to Parliament – seems to invite quite technical analysis of the Prime Minister’s conduct, and even his state of mind, when assessing whether the legislature has been misled.

The PM as Arbiter of the Code

First, it is made explicitly clear that the Ministerial Code is the Prime Minister’s document, and it is for the Prime Minister to apply and enforce: ‘Ministers only remain in office for so long as they retain the confidence of the Prime Minister.  He is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards’ (2019, para 1.6).  This was also accepted by the High Court in the recent case of FDA v Prime Minister [2021] EWHC 3279 (Admin).  While the court (dubiously, in my view) held that some questions relating to the Ministerial Code might be justiciable (in this case, the interpretation given to the concept of ‘bullying’), Lewis LJ and Steyn J acknowledged at para [60] that the Prime Minister was the ultimate decision-maker in relation to whether there had been a departure from the standards set out in the Code.

Of course, it has long been true that a Prime Minister has the decisive say over ministerial resignations.  Writing in 1956, long before the publication of a Ministerial Code, the political theorist Samuel Finer – who was sceptical about the ‘constitutional folk-lore’ concerning the existence of a ‘supposed’ resignation convention – identified three factors which determined whether a minister would lose their office: ‘if the Minister is yielding, his Prime Minister unbending and his party out for blood’.  If, as in the present circumstances, the minister under pressure is also the Prime Minister, then his or her decision-making effectively accounts for two out of three of these variables.

Yet if criticism of Boris Johnson’s conduct is made against the benchmark of the Ministerial Code, of which he is the stated arbiter, this sets up an accountability paradigm which is entirely premised on the fact that it is a matter of the Prime Minister’s own moral calculation whether to resign.  If Finer’s third variable – the attitude of the political party – was already peripheral, in focusing on the text of the Ministerial Code it is written out of the picture.

This first limitation of accountability via the Ministerial Code is now partly being addressed by Parliament taking a greater role in the accountability process.  The vote last week in the House of Commons to order an investigation into the Prime Minister’s statements to Parliament about the non-occurrence of parties in Downing Street is a welcome reminder that it is a matter for the Commons to determine whether a Prime Minister has misled the House.  But while it will surely add to the overall political pressure on Johnson and the government, any such investigation remains some way off – pending the completion of the police investigation and the publication of Sue Gray’s full and final report – and the consequences of it are difficult to anticipate, especially if the Prime Minister manages to survive until that point.  The Conservative Party has a majority on the Privileges Committee, which will carry out the investigation without its current chair Chris Bryant, who has recused himself on the basis of his previous criticism of Johnson.  A vote on any recommended sanctions would then come back to the whole House, where the Conservatives also enjoy the protection of a substantial majority.  And while potential sanctions include a (likely short) suspension from the Commons, the Privileges Committee could not instruct Johnson to resign as Prime Minister.

More importantly, Conservative MPs have not to this point lacked a formal means to remove the Prime Minister, which they could attempt through a no confidence vote in his leadership of the party or even in his government – instead, it has been the unwillingness of a majority of MPs to use these constitutional mechanisms which has ensured Johnson remains Prime Minister.  But at least these parliamentary developments have refocused the debate and remind us that, in this case, whatever the text of the Ministerial Code may say, the Prime Minister does not have the exclusive power to determine his own fate.

Avoiding Technicalities

The second challenge raised by the pursuit of Prime Ministerial accountability by reference to the Ministerial Code is that it may be encouraging an unhelpfully technical approach to the rules which prohibit misleading Parliament.  The relevant provision of the Code (which is replicated in a Commons resolution of 19 March 1997, Cols. 1046-47) says ‘It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity.  Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister’ (2019, para 1.3(c)).  This provision is unusual in the Code in identifying a specific potential sanction – resignation – for misleading Parliament.  And there is also plenty here for those who are used to dealing with legal rules to get their interpretive teeth into, in particular the question of when an error will count as ‘inadvertent’, and what it means for a Minister to mislead Parliament ‘knowingly’.

The risk, however, is that focusing on the textual formulation of this rule encourages a legalistic approach which distracts from the underlying normative purpose of the principle that Ministers should not mislead Parliament.  There will be rapidly diminishing returns from a debate about whether ‘knowingly’ means the Prime Minister must have intentionally or consciously lied to Parliament to violate the relevant norm, or whether having (or claiming to have) a misguided subjective belief that he was giving accurate information based on the assurances he had received would be sufficient to avoid a technical violation.  It also, crucially, sets up the defence Johnson has already used to deny he misled Parliament – that it did not occur to him ‘then or subsequently’ that the gathering he attended to celebrate his birthday would be a breach of the law, so in that sense there has been no knowing deception.

Instead, when establishing whether the Prime Minister misled the Commons, his alleged state of mind need not be the decisive factor.  The scale and significance of the misleading claims are also material, a point which emerges from the speech of Harold Macmillan in the debatefollowing the resignation of John Profumo for misleading the House of Commons in 1963: ‘I do not remember in the whole of my life, or even in the political history of the past, a case of a Minister of the Crown who has told a deliberate lie to his wife, to his legal advisers and to his Ministerial colleagues, not once but over and over again, who has then repeated this lie to the House of Commons’ (HC Deb 17 June 1963 vol.679, cols.54-55). 

In relation to partygate, the current Prime Minister expressed a clear position, repeated in the House of Commons and elsewhere (on one count, the denials of rule breaking were made some 39 times), about a matter of major public significance, which has proved to be inaccurate.  Going down the rabbit hole of whether the Prime Minister did or did not know that he was misleading the Commons is a distraction from the fact that, regardless, he ought to have known.  Especially as the head of the government which enacted the relevant secondary legislation regulating the response to Covid-19, as the political leader responsible for communicating the need for and effect of these rules directly to the people, via television press conferences on a regular basis throughout the pandemic, or even simply (as we are frequently reminded) as a public figure who obtained an education from an expensive school and a leading university.

There is a recent precedent which reinforces this approach.  In 2018, Amber Rudd resigned as Home Secretary having misled the House of Commons Home Affairs Select Committee over the existence of immigrant removal targets.  The information she relied on was prepared by civil servants within her department, but in her resignation letter to the then Prime Minister Theresa May, Rudd wrote ‘I have reviewed the advice I was given on this issue and become aware of information provided to my office which makes mention of targets.  I should have been aware of this, and I take full responsibility for the fact that I was not’ (emphasis added).

There are of course a multitude of factors which shape any ministerial resignation, and no doubt Rudd’s departure from office was influenced by other considerations.  They include the objectionable nature of the removal targets which she had denied existed, wider public outrage about the deportation and denial of rights by the state of the generation of black Commonwealth citizens caught up in the Windrush scandal, and the fact that Rudd’s resignation might be viewed as a form of sacrificial accountability which protected her Prime Minister Theresa May, who as Home Secretary had been the leading architect of the hostile environment immigration strategy which led to Windrush.

Yet with all these caveats, Amber Rudd’s resignation shows that we need not get caught up in excessively technical arguments about the Prime Minister’s state of mind which are elevated in this debate by overfocusing on the written text of the Ministerial Code.  In constitutional terms, this is a precedent which indicates the Prime Minister should be expected to resign.

Nevertheless, even in a situation where 78% of the public do not believe the Prime Minister’s claims, there is no authority which can compel him to accept this conclusion and resign (although as Alison Young points out, there are still consequences for him to bear in the meantime, in the form of vociferous political criticism).  Looking beyond the Ministerial Code, however, at least allows us to construct the argument that the “it never crossed my mind” defence is an inadequate defence – constitutional principles have been violated, because the Ministerial Code is not exhaustive or determinative of the Prime Minister’s obligations to Parliament.

Conclusion

The Ministerial Code is a valuable document in clarifying many standards applicable to government ministers in an accessible way.  But over-emphasis on the Ministerial Code as the central instrument of political accountability generates some challenges. 

If the Ministerial Code becomes a de facto replacement for the deeper constitutional conventions of ministerial responsibility, rather than a supplement to them, it imports a key structural problem: it emphasises the PM–Cabinet accountability relationship over the government–Parliament accountability relationship.  This is especially problematic when it is the Prime Minister whose conduct is the subject of scrutiny, as well as being the formal source of these ethical rules within government.  Reliance on the Ministerial Code as the primary vehicle for establishing ministerial standards also demonstrates that, as well as generating the potential for accountability, the existence of precise written rules can be a limitation if those rules are susceptible to being interpreted narrowly.

These tensions are evident in the debate about whether the Prime Minister should resign over partygate.  The Ministerial Code is obviously not the main problem in the UK constitution at present, but it is nevertheless worth considering how a shift in constitutional discourse might create some scope for more effective accountability in practice.

I’m very grateful to Alison Young for her comments on an earlier draft of this post.

Mike Gordon, Professor of Constitutional Law, University of Liverpool

This post was originally published on the UK Constitutional Law Blog. Republished with the permission of the author.

(Suggested citation: M. Gordon, ‘The Prime Minister, the Parties, and the Ministerial Code’, U.K. Const. L. Blog (27th Apr. 2022) (available at https://ukconstitutionallaw.org/))

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The Prime Minister and the Palace of Westminster

In evidence to the House of Commons Liaison Committee this week Theresa May discussed the Restoration and Renewal of the Palace of Westminster. Alexandra Meakin discusses the importance of government support for the R&R programme.

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Irrelevant Questions Undermine the Value of PMQs

By Andrew Defty

The weekly Prime Minister’s Questions is undoubtedly an important mechanism for holding the government to account. The requirement that the Prime Minister must come to the chamber of the House of Commons on a weekly basis to answer questions about government policy and administration provides a valuable, and rare, opportunity for individual MPs to scrutinise government.

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Too Much Shredded Wheat? Leadership and the lessons of prime ministerial resignations

By Kingsley Purdam, Dave Richards and Nick Turnbull

On both sides of the Atlantic, the New Year has offered up contrasting but related events concerning the highest office of state. First, there was President Obama’s last State of the Union address, a constitutional nicety driven by the limits placed on presidential terms in the USA. For Americans, this valedictory tour de force has a familiar and predictable pattern to it; an opportunity for the incumbent to survey the highlights and narrate their own legacy, so focusing America’s mind on the issue of succession. It is notable that elsewhere and under different circumstances, some political leaders have sought to lead indefinitely, even changing their countries’ constitutions to allow them an extended period of office. President Robert Mugabe has held power in Zimbabwe since 1987. In Rwanda, President Paul Kagame has extended his right to rule until 2034. Similarly, one of the world’s longest serving leaders President Paul Biya of Cameroon has revised his country’s constitution to allow him to continue as president. President Putin served two terms and then stepped down because of Russia’s constitutional limits, only to return in 2012. During his interim, presidential terms in Russia just happened to be extended from four to six years! On this side of the Atlantic, the Prime Minister David Cameron has already, of his own apparent volition, opted to step down ahead of the 2020 General Election. Cameron mused that two terms as Prime Minister were quite enough, stressing the importance of retaining his sanity. Yet in January 2016, he suggested that in the event of a ‘Brexit’, he would seek to remain in office for a full term.

So what can we learn about politics and leadership from leaders who resign their roles when they could stay on? What is the optimum time for being a political leader?

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