Timothy Endicott is the Vinerian Professor of English Law, University of Oxford
With his characteristic insight and his insistence on facing facts, Lord Judge has identified some notable drawbacks in our constitution. To assess them, we should put them in the context of one great good thing about the constitution: getting rid of Prime Ministers in the 21st century is so easy. Getting rid of the Stuart Kings took a civil war and then the Glorious Revolution.
Lord Judge says that Prime Minister Boris Johnson had ‘a comfortable majority’ in 2021. If a Prime Minister really had a comfortable majority, our constitution would be structurally deficient. But ask Boris Johnson how comfortable his majority turned out to be. Ask Liz Truss how comfortable that same majority was. Ask Theresa May how comfortable her slim majority was. Ask David Cameron. Tony Blair. Margaret Thatcher. Harold Wilson. Harold MacMillan. Anthony Eden. Winston Churchill. Each resigned the office of Prime Minister while holding a majority that would not or could not help them.
It is easy to suppose that a Prime Minister’s sojourn in 10 Downing Street ends either (1) when a government loses its majority in a general election (as in the cases of Clement Attlee and John Major and Gordon Brown), or (2) after a vote of no confidence in the House of Commons (as in the case of James Callaghan), or else (3) at the Prime Minister’s pleasure (I do not know of any examples). In fact, the norm for British Prime Ministers is to resign as a matter of political necessity, while holding a majority. It is standard practice for those who make dramatic mistakes (e.g. Anthony Eden and David Cameron). It is standard practice for charismatic and powerful leaders (e.g. Thatcher and Blair). Ten of sixteen British Prime Ministers since World War II have had to resign without losing a vote of no confidence or an election. That number includes every Prime Minister in this century except Gordon Brown and Rishi Sunak.
Prime Ministers who vanish while their party commands a majority in the House of Commons are vivid reminders of the acute, personal political danger to which the constitution exposes a Prime Minister. Your own people will turn on you and go for your throat. You will vanish, like Liz Truss, if you don’t sustain a sense of credibility in the political imaginations of the many MPs in your comfortable majority.
This terrific improvement in our constitution –accomplished in the four hundred years since King James threw Sir Edward Coke in the Tower– is hiding in plain sight throughout Lord Judge’s article, right from the title, ‘The King’s Prerogative, 1622; the Prime Minister’s Prerogative, 2022’. It is the best of good news that the conduct of executive government in the UK today is ruled by the decisions of a person who is painfully, poignantly exposed to political danger – a person whose comfortable majority can turn into a pack of snarling wild dogs.
But, as a result of that political danger, it is misleading to call the executive power of the UK government today the ‘prerogative’ of the Prime Minister (and of course, calling it the ‘prerogative’ of King Charles III is only our quaint figure of speech). If we call executive power today the ‘prerogative’ of the Prime Minister, we might as well call Parliament’s power the ‘prerogative’ of MPs, or the power of the High Court the ‘prerogative’ of the judges. We should never lose sight of how different it was in 1622, when a Stuart king really could see the executive power of the state as his own prerogative.
The trouble that Lord Judge rightly observes is not a structural deficiency arising from the Prime Minister’s customary authority to advise the King on the use of executive power. That organisation of our executive government is a great thing. The drawbacks are more particular. Most notably, Lord Judge writes compellingly about the excessive use of Henry VIII clauses in Acts of Parliament. I expect it has grown more excessive since he gave another famous, prophetic lecture in 2016. He makes a fair comment that ‘Parliament was sidelined’ in law making in response to Covid –although I have to say that it is hard to see how Parliament could have operated as normal in circumstances that did not allow large, noisy gatherings.
And I can only agree with Lord Judge’s disparagement of the practice of Prime Ministers in appointing members of the House of Lords. It is an ongoing national scandal that Prime Ministers appoint their party donors to our legislature. But I am not sure that Lord Judge is right to say that ‘No one and nothing has any controlling influence over the Prime Minister.’ The custom is so bad that Prime Ministers must presumably feel a political need to make many patently good appointments.
And the constitution certainly does enable Parliament to pass constitutionally obnoxious legislation like s 16 of the Elections Act 2022, requiring the Electoral Commission to have regard to government strategy and policy on elections.
And here is another drawback, which we could add to Lord Judge’s list: when a Prime Minister vanishes because of political forces focused through our excellent constitutional arrangements, we are all at the mercy of the internal rules of a private members’ club! The political parties ought to be ashamed of this. You will hear their spokespersons call the election of a leader by party members ‘democratic’. That is not democracy; their members are not the demos. Let them choose a leader any way they wish for a general election. But after a Prime Minister vanishes, if his or her party is going to use its majority to appoint a new Prime Minister without a general election, it ought to put the leadership –the appointment of a Prime Minister– in the hands of the party’s MPs, whose election by actual voters is what gave the party the opportunity to appoint a Prime Minister.
Drawbacks notwithstanding, this constitution is a really surprisingly good one. With no disrespect to you and me and the other 67 million of us, I have to think that we could not possibly agree on a better constitution. The political danger it creates for the Prime Minister exposes a political party to the danger of retribution for the trouble it inflicts on the political community. I think that is actually the best single thing that we can expect from a constitution. Lord Judge opens his lecture with the question, ‘When did the trouble start?’ I think the trouble started when human communities first started allocating power to persons and institutions to govern the community. The trouble did not start when the Stuart kings claimed a power of government that was irresponsible; it has not ended now that uncomfortable majorities in the House of Commons give us a form of responsible executive government. The trouble is a feature of the allocation of power in all political communities.