Should Our Constitution Protect Against Party Elected Leaders?

From a Social Context of the Law discussion held on 16 May 2023 between Professor Sir John Curtice FRSA FRSE FBA and Master David Lidington, moderated by Master David Hunt

Lord Hunt: What an exciting time to explore this subject of Should our constitution protect against party elected leaders? It’s set in the context of Prime Ministers taking office without a general election. I take to this subject, like a duck to water, because it has been a part of my parliamentary life for the last 50 years. And 50 years in parliament have seen some ups and downs, but never has it come into a situation where in one year we had three Prime Ministers.

Sir John Curtice: The reason why this debate has been stimulated this evening is the sight of just over 140,000 people deciding who should become the next Prime Minister in the summer of last year, only for the decision to be overturned within a matter of weeks and the loser declared the winner. Inevitably that somewhat improbable sequence of events has made people ask about whether or not having party members elect leaders is wise. It has also become an issue because the Conservative Party has now used this procedure twice while in office. Also, earlier this year the SNP had a party members’ ballot to decide the leader of the SNP, and that was the first time that Scotland’s First Minister was decided by that method.

Why might we worry about this? I’m going to examine three criticisms that are commonly made. One is that in the case of the Prime Minister it’s undemocratic that it should be decided by anybody other than the electorate. So, Prime Ministers should be directly elected. The second is that irrespective of whether a party is in office or is in opposition, it’s a less effective way of identifying the person who is most likely to be a good leader, that MPs know best. The third criticism is that it is unrepresentative, that those who do vote in these party membership elections are not typical of the public, or perhaps even of the people who vote for the party in question.

I’m going to look at some of these. I’m going to turn the question around towards the end and suggest that probably we do need to keep party membership ballots. But we actually also need to reintroduce MPs into the process of electing a Prime Minister – at the moment they do not have any role at all.

First, it’s undemocratic. We shouldn’t change Prime Ministers without an election. Well, we have a parliamentary system of government, and under parliamentary systems of government, our Prime Ministers need to be able to maintain the confidence of the House of Commons. And if you go through the history of Prime Ministers since 1918, of the 36 people who entered into office, 23 of them first acquired office, not as a result of winning an election, but as a result of taking over from their predecessor. Only 13 of them have come into office as a result of an election. Meanwhile, of the 23, only two of them went to the country almost immediately on becoming Prime Minister. So, every time you hear a politician get up and say: “We should have an election, we should have an election!”, you should just say to yourself: “They need to learn – A, their Constitution and B, their history.”

What is true, is perhaps in some senses we’re seeing the unintended consequences of changes. All of our parties in fact initially introduced leadership elections while they were in opposition. It started with the Liberal Party in 1976. Then, Labour in 1981 once they were in opposition, and then the Conservatives in 2001, when they were in opposition. These are parties that when in opposition decided who was going to be their leader, but then it does mean that they’re now using that internal procedure to elect somebody who then assumes the office of Prime Minister/First Minister. Given a parliamentary system, the leader is going to be the person who becomes Prime Minister, however they reach office.

Second, it’s ineffective, that MPs know best. There is certainly a kernel of truth that what is crucial for leaders is that they have to be able to maintain the confidence of their parliamentary colleagues. If you look at the people who became leaders without clearly being endorsed by their parliamentary colleagues – Ian Duncan Smith, Liz Truss and Ed Miliband – two of them resigned and the other’s lack of authority wasn’t helped by the way he acquired office. So, there’s certainly a lot of merit in saying that MPs should have a role.

The third accusation is that party members aren’t representative. And the accusation often is made that they are extreme. One thing that is true, and arguably is a problem, is that our political parties tend to have diminishing memberships. That’s certainly true of the Conservative Party. The first Conservative leadership election back in 2001 had about a quarter of a million people who actually participated. The last time, it was less than 150,000.

A lot of the criticism comes from what we in political science call May’s Curvilinear Law of Disparity, which is the idea that the sensible folk are the voters; the unsensible extremists are the activists, the party members; and the MPs perhaps aren’t quite as sensible as the voters, but for the most part they tend at least to listen to the sensible folk, even though they’re not always necessarily sensible by inclination.

The trouble with this is, however, the research does not suggest that this is correct. Pippa Norris, back in 1992, found, for example, on issues like nationalisation and taxation, spending and welfare, that if the Conservative MPs are at one end of the spectrum and the Labour MPs at the other end of the spectrum, although their activists may be more left- and right-wing respectively than their voters, it’s the MPs who are the ideologues.

In the Conservative Party at the moment, Conservative MPs are just so much more economically liberal than everybody else. On the Labour side, it’s Labour MPs, above all, who are ideologically socially liberal. So, if you’re concerned about leaders being elected by folks whose views are not necessarily representative, the last group of people you would give the election to is MPs. So, MPs have a role as people from whom leaders need support, but we don’t necessarily want to give the choice simply to MPs. How am I going to square the circle? Well, I want to draw you to what I think is a gap in our constitutional convention/law. The truth is at the moment, this is the great secret – nobody elects the Prime Minister. Nobody at all casts a single vote for a Prime Minister.

The Crown appoints somebody whom it thinks will be able to command the confidence of the House of Commons. The Commons, by convention although not necessarily by law, can get rid of a Prime Minister by a vote of no confidence. It’s worth contrasting the situation with that in both Scotland and Wales, in the devolved institutions. So, yes, SNP members, decided they wanted Humza Yousaf as their leader. But then Humza Yousaf had to be elected by MSPs in the Scottish Parliament.

And I think arguably, if a majority party finds it doesn’t like what the members have decided, if we have a formal vote of MPs, at least in theory, it is open to them to say no, we’re in favour of having somebody else. So, I want to suggest that probably we have to end up keeping the choice amongst members, but if, for example, another Jeremy Corbyn type figure comes along who MPs really cannot stand, then we give them a vote, and they can vote or not vote for the person to become Prime Minister that their party has chosen as leader

Sir David Lidington: Let me summarise where I come from on this. I think that there’s certainly a case for constitutional reforms of various kinds, I think that the power of the executive at the expense of parliament has increased, and ought to be subjected to further checks, and I don’t think that we can simply rely on conventions and customs in so doing.

Secondly, I think the question of whether members of political parties should or should not take part in the election of a party leader, including of a leader who becomes Prime Minister because that party has a majority in the House of Commons, is largely a red herring. It is a political matter which I don’t think is central to the constitutional question involved.

It is my view that the decision about who becomes Prime Minister and how long an individual serves as Prime Minister between elections must constitutionally remain with members of the House of Commons. Historically, Prime Ministers in our country were the personal choice of the sovereign. Originally, the term ‘Prime Minister’ was an insult. It was a term designed to accuse somebody of seeking to accrue semi-dictatorial, viceregal power, and the office of Prime Minister was not even mentioned in an Act of Parliament until the early 20th century.

Until then, the office of Prime Minister was not recognised anywhere in statute. The King or Queen’s first minister, their Prime Minister, was the person who could command a majority in the Commons. And it was perfectly normal for the Prime Minister to change between elections. And we used to have a requirement whereby when a backbench member of the House of Commons became a minister, they had to resign their seat and fight a by-election, in order to be confirmed.

The constitutional reality is that voters elect a House of Commons. And it’s the House of Commons with that mandate from the electors which then decides who the Prime Minister should be. And we have to have a mechanism in our system for dealing with what happens if either a Prime Minister loses the confidence of the Commons, or a Prime Minister resigns for other reasons, on the grounds, for example, of ill health or death in office.

What happened I would argue in 2022 was actually an example of the Constitution working. It looked pretty chaotic, but actually what happened was that you had first one and then a second Prime Minister, who lost the confidence of the majority of the House of Commons. And the constitution did its work – Boris Johnson and Liz Truss were effectively deposed by members of parliament.

I think the electorate, for the most part, tends to share the view of Brenda from Bristol at the time of the 2017 election called by Theresa May. “What do you think about this election? How are you going to vote?” She stared at the interviewer and said: “Not another one!” Most people know it’s their duty to vote but they don’t want to be troubled to go to the ballot box more frequently than necessary.

Political parties are a necessary part of a mass democracy. Having seen this from the inside, I could argue with great confidence that without the discipline and the cohesion that membership of a political party imposes, it will be impossible for any government of any political stripe to get anything done. Imagine a House of Commons of 650 independents trying to take any unpopular but necessary decision in the national interest. It would not happen. I’ve seen firsthand what happens when a government loses its overall majority or has just a tiny one. The Prime Minister of the day then ends up in a constant week-by-week or day-by-day process of negotiation with this or that group of backbenchers. And the political party provides, even in those circumstances, at least some hope that consistent government can be carried on.

I do think in the context of an election that fails to deliver a decisive majority for one party or the other, there is merit in the system that some European democracies have of a ‘wise man or woman’ being appointed to act on behalf of the sovereign to test out who might be able to put a coalition or a working majority together in the House of Commons. I think that, where a majority exists, having a decision very clearly left to the political party concerned, either through its MPs alone or through its MPs and party members, is the best way to protect the king from partisan controversy.

The irony of bringing party members into these decisions was that it was seen certainly by my party, and I think by the Labour Party too, as a means to try to make it more attractive for people to become party members and to broaden the membership base and make it more diverse, at a time when all parties were, and continue to be, worried about how reluctant most people are to join parties, and the narrowing and ageing of the party base. Now my view is that the mechanism was tried in good faith, but I don’t think it has actually worked very well. But I don’t think you can ban parties from enfranchising their members. And the fact that party members – in most circumstances under our system – play the key role in selecting or deselecting candidates to be members of parliament means that there will always be that possibility of revenge.

If we’re looking for constitutional changes that might make a difference, and might do something to rebuild public trust in our system, we need to look again at how we programme the time allotted to individual bills, where too often that is used by the government of the day as a means to restrict debate on things the government would prefer were not debated, and for ill-drafted legislation to be rushed through the Commons, only to be largely rewritten when it comes to the House of Lords. I think we could look at enhancing the power of select committees to confirm major public sector appointments.

We need to look again at how we programme the time allotted to individual bills, where too often that is used by the government of the day as a means to restrict debate on things the government would prefer were not debated.

And we could have a new Parliament Act, which defined the powers and responsibilities of a reformed upper chamber. Which could, for example, give it enhanced power to delay or even to block certain categories of legislation: perhaps specific powers over Statutory Instruments, which often get inadequate scrutiny; perhaps even to define in law a class of constitutional statutes and say that, as with the Quinquennial Act now, the upper chamber’s assent would be required if those Constitutional statutes were to be amended or repealed. So, I think that there is a really significant agenda for constitutional reform and for debate about the relationship between the executive and legislature, but I think that this particular question of who it is that should approve the change of Prime Minister between general elections is a very, very minor aspect of that debate.

For the full video recording:


Sir John Curtice FRSA FRSE FBA

The Rt Hon Sir David Lidington KCB CBE

The Rt Hon Lord Hunt of Wirral MBE

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