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Constitutional conundrums: what happens if a Prime Minster resigns during an election campaign?
Media reports both prior to the start of the general election campaign and now during it suggest that some Conservatives want Rishi Sunak to resign. I put it in terms of the individual rather than the office because Rishi Sunak holds two positions. He is leader of the Conservative Party and consequently, because he led a party commanding a majority in the House of Commons, was invited to become Prime Minister.
Some members may wish him to be replaced as party leader, but during an election campaign there is no mechanism by which he could be removed as leader. Parliament is dissolved, so there are no MPs. Under the party’s constitution, the 1922 Committee comprises Members of Parliament. There is therefore nobody to write to the chairman of the 1922 Committee to call for a vote of confidence in the leader. If Rishi Sunak were to resign of his own accord, the party would be in limbo as there are no MPs to choose two candidates to place before party members. If the outgoing executive of the 1922 Committee, albeit comprising no MPs (and having to meet elsewhere than the Palace of Westminster), were to determine it still had authority to receive nominations and only one was received, it may declare that candidate elected. But that would rest on shaky legal foundations, given the uncertain status of the executive, and on there being a consensus within the party as to who the candidate should be, which – given the perceived leadership ambitions of a number of Cabinet ministers - may be deemed unlikely. One candidate could potentially agree to hold the post until the general election was completed and a contest was then held, but it is not clear why anyone would wish to hold such a position at this time for a short stint.
The election of a party leader is entirely a matter for the party in question. Formally, it is possible for the Conservative Party to have a new leader before 4 July (the obstacles to achieving that are, as indicated, the party’s own constitution, not the constitution of the UK), while the Prime Minister remains in office until the election result is known and it is clear who the monarch should summon to the Palace.
The other aspect is if Rishi Sunak resigns as Prime Minister. This is distinct from resigning as party leader. Normally, the Prime Minister announces they will relinquish the leadership, but stay in No. 10 until such time as a successor is elected. But what happens if a Prime Minister simply decides to resign with immediate effect? I have explored the constitutional implications of this before. What happens if a Prime Minister dies or decides to resign and not wait until a successor is chosen? The last time a Prime Minister died in office was Palmerston, when it was possible to wait some time before a successor was chosen by the monarch. Today, there is not the luxury of waiting. Civil servants had to explore the constitutional options if Tony Blair lost the parliamentary vote on the Iraq war and decided to resign immediately. In the event, he didn’t lose the vote.
Media reports both prior to the start of the general election campaign and now during it suggest that some Conservatives want Rishi Sunak to resign. I put it in terms of the individual rather than the office because Rishi Sunak holds two positions. He is leader of the Conservative Party and consequently, because he led a party commanding a majority in the House of Commons, was invited to become Prime Minister.
Some members may wish him to be replaced as party leader, but during an election campaign there is no mechanism by which he could be removed as leader. Parliament is dissolved, so there are no MPs. Under the party’s constitution, the 1922 Committee comprises Members of Parliament. There is therefore nobody to write to the chairman of the 1922 Committee to call for a vote of confidence in the leader. If Rishi Sunak were to resign of his own accord, the party would be in limbo as there are no MPs to choose two candidates to place before party members. If the outgoing executive of the 1922 Committee, albeit comprising no MPs (and having to meet elsewhere than the Palace of Westminster), were to determine it still had authority to receive nominations and only one was received, it may declare that candidate elected. But that would rest on shaky legal foundations, given the uncertain status of the executive, and on there being a consensus within the party as to who the candidate should be, which – given the perceived leadership ambitions of a number of Cabinet ministers – may be deemed unlikely. One candidate could potentially agree to hold the post until the general election was completed and a contest was then held, but it is not clear why anyone would wish to hold such a position at this time for a short stint.
The election of a party leader is entirely a matter for the party in question. Formally, it is possible for the Conservative Party to have a new leader before 4 July (the obstacles to achieving that are, as indicated, the party’s own constitution, not the constitution of the UK), while the Prime Minister remains in office until the election result is known and it is clear who the monarch should summon to the Palace.
The other aspect is if Rishi Sunak resigns as Prime Minister. This is distinct from resigning as party leader. Normally, the Prime Minister announces they will relinquish the leadership, but stay in No. 10 until such time as a successor is elected. But what happens if a Prime Minister simply decides to resign with immediate effect? I have explored the constitutional implications of this before. What happens if a Prime Minister dies or decides to resign and not wait until a successor is chosen? The last time a Prime Minister died in office was Palmerston, when it was possible to wait some time before a successor was chosen by the monarch. Today, there is not the luxury of waiting. Civil servants had to explore the constitutional options if Tony Blair lost the parliamentary vote on the Iraq war and decided to resign immediately. In the event, he didn’t lose the vote.
What happens in the event of Rishi Sunak deciding he has had enough and decides to resign as leader and Prime Minister? As explained, there may be the prospect of one candidate being put before the 1922 executive, but that would not only have questionable legal authority, but it would also put the monarch in a difficult situation. Would the king be obliged constitutionally to invite that person to form a government and to do so during an election campaign? By convention, the monarch invites someone to become Prime Minister who can command a majority in the House of Commons. But would that be a majority of the outgoing House of Commons, which no longer exists, or of the upcoming House of Commons, which has yet to be elected. It would place the monarch in an embarrassing if not impossible situation.
That assumes, though, that a Conservative party leader could be put in place immediately. Given that is unlikely, the less fraught constitutional situation would be for someone to be appointed as an acting or temporary (potentially very temporary) Prime Minister while the Conservative Party sorted out the arrangements for selecting a new leader. The possibility of having a temporary occupant of No. 10 was something to which the Queen’s Private Secretary, Sir Martin Charteris, gave thought in the 1970s and produced a memorandum on the subject. There is no constitutional bar to having an acting Prime Minister. (There is a precedent in that the Duke of Wellington served as such while Sir Robert Peel returned from the continent to take up office.) Under the Charteris memorandum, it was proposed that the person to hold the post should be a member of the Cabinet who was not likely to be a candidate for the leadership. At the time, the Lord Chancellor was seen as the potential minister to preside while a new leader was elected. The post of Lord Chancellor has since changed – the occupant could be a leadership contender – so an alternative would need to be found. One possibility would be the Leader of the House of Lords, who during the election campaign has the advantage of not being preoccupied fighting a parliamentary seat. It would also mean that a member of Parliament was chosen, as – while there are no MPs during an election campaign – peers remain as such. Another possibility would be Oliver Dowden, given that he has the title of Deputy Prime Minister. However, the title is precisely that: Deputy Prime Minister is a title and not a post. The monarch’s prerogative in selecting a Prime Minister is formally unfettered.
There is one other possibility in that formally one could have an interim leader of the Conservative Party and an acting Prime Minister and for those not to be one and the same person. These are all hypotheticals. They demonstrate the problems were the Prime Minister to resign during an election campaign. I was going to write that stranger things have happened, but I was trying to think what.
Author Biography
Philip Norton, Lord Norton of Louth, is Professor of politics at the University of Hull and a distinguished constitutional historian and political scientist.