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Published: 03 September 2019

Last Updated: 04 September 2019

 

The status and authority of the Johnson government – is it a caretaker government and what does that mean for Brexit and the prorogation of Parliament?

Introduction

In the wide ranging constitutional debates we have seen recently, one point that has not really been discussed is the status and authority of the Johnson government. In some ways this is surprising. The question is, is it a government ruling with its authority arising from the confidence of the House, or is it merely a “caretaker government”, and if it is a caretaker government, what does that mean?

Since Johnson took office following his election as Party Leader of the Conservative Party by 160,000 Conservative party members, there have been many calls for a vote of no confidence in the Johnson government because of its approach to Brexit. With no majority, and Parliament and the country in uproar at Johnson’s decision to prorogue Parliament for five weeks, it seems clear that the current government does not have the support of the House. So is it a caretaker government and what would it take for the caretaker conventions to apply? And if the caretaker conventions were applying in what ways would that constrain the government and would it even have the authority to deliver a no deal Brexit, which is the stated aim of Boris Johnson?

Is the Johnson government politically legitimate or not?

The UK doesn’t have a formal constitution, but relies on governments following precedent and adhering to established protocols of behaviour. One of the most important of these protocols is the Cabinet Manual 2010 which unequivocally states that the PM’s authority flows from the confidence of the House¹. Therefore, without the expressed confidence of the House, Johnson is arguably just an interim PM of a caretaker government.

The status of the government is important because a key aspect of the Caretaker Conventions is that a caretaker government must refrain from taking ‘irrevocable decisions which its successors would not be free to change’². Therefore, if it was defined by Parliament as a caretaker government it would be constitutionally constrained from enacting a no deal Brexit, as its authority to act relies on having the confidence of the lower House to act, and Parliament has made clear its opposition to no deal.

It is a fundamental aspect of constitutional law that there must always be a Prime Minister; the Queen’s government must be carried on³. However, not all governments have the same authority; with the confidence of the Commons, a government has legal and political legitimacy. Without it, it is a caretaker government that has legal, but not political, legitimacy⁴, and it is constrained by convention in how it should operate because it is not, or cannot be held, accountable to Parliament⁵.

How does Parliament make clear that it has no confidence in the Johnson Government?

The clearest form of loss of confidence is a vote by a majority of the lower House that the House no longer has confidence in the prime minister or the government. For example, the Callaghan government was defeated by a motion that “this House has no confidence in Her Majesty’s government”. However, an absence of confidence in the government has been demonstrated in a number of other ways for example:

• rejecting supply, by a Member crossing the floor, and defeating a government bill, or

• reducing the budget by a nominal amount which indicates that the government can no longer control its finances, or

• making an amendment to the address in reply upon the opening of a session of Parliament, which shows that the governments Parliamentary agenda is not accepted by the House.

• by a defeat of the government on a major bill or even be a defeat upon a procedural motion, such as the adjournment of the House, indicating that the government no longer controls the procedure and operation of the House.

The House therefore has considerable flexibility in how it makes clear to the Johnson government that it does not have confidence in what the government are doing, even when subject to very tight time constraints.

How could MPs ensure that the Johnson government is explicitly subject to the caretaker conventions before Parliament is prorogued?

Anne Twomey⁶ argues that where confidence in the government is in doubt, with a vote of no confidence pending, the caretaker conventions apply until confidence is established or a new government appointed⁷. So how can the House of Commons make clear that the caretaker conventions should apply, if it has serious doubt in the Johnson government? In the absence of a Vote of No Confidence, there is no clear consensus as to when a government’s ability to command parliamentary support can be considered to have been tested. The House of Commons Justice Committee concluded⁸ in its report on ‘Constitutional processes that applying following a general election’ (which arguably does not apply in the case of the Johnson government ) that the period in which the caretaker conventions apply should be carefully defined and the fact that a caretaker period has commenced or concluded should be explicitly announced. So, in the current situation, how could Parliament make explicit its lack of confidence in the Johnson government and its view that the caretaker conventions should be applying to it? According to Anne Twomey,

“Serious doubt might be established, for example, by a letter signed by a majority of members of the lower House indicating no confidence in the government. While such a letter may not (without a vote on the floor of the House) amount to proof of loss of confidence, it may be sufficient to trigger the application of caretaker conventions, pending a vote of the House on confidence.⁹”

If a majority of MPs were to sign such a letter prior to Parliament being prorogued, so it was clear that the caretaker conventions were deemed to apply, the Johnson government would not have the constitutional authority to Brexit on the basis of no deal, which a majority of MPs view as being against the national interest.

Such an approach could have several advantages. Given the limited time before prorogation it has the advantage of being a step that can be taken quickly. Secondly, explicitly invoking the caretaker conventions rather than pursuing a Vote of No Confidence could be more palatable to moderate Conservative MPs, who might feel it is a step too far to bring down the government, but who are equally very unhappy with the prorogation of Parliament for five weeks and/or the no deal policy currently pursued by the Johnson government. Furthermore, as the Johnson government would remain in post, but be limited in what it should do, establishing serious doubt in the Johnson government would not be the same as bringing it down as Johnson would remain as caretaker PM. However, doing so should also minimise the risk of no deal as Parliament would have clearly stated that neither Johnson nor his government has the constitutional authority for such a radical step, and caretaker governments may not make “irrevocable decisions which its successors would not be free to change”.

On past form, there is obviously a risk that the Johnson government would chose to flout the caretaker conventions. That is true. In that situation, Parliament could then bring forward a Vote of No Confidence, and if convention had been brazenly flouted in defiance of Parliament it would arguably be more likely to succeed. It is also worth bearing in mind that if the government fell in that situation then there is a reasonable chance that either the Leader of the Opposition or the head of a unity government would take over. Whichever took over, their role would also be subject to the caretaker conventions so they would be equally constrained in implementing new policy initiatives and would primarily be tasked with the routine job of government. It is therefore largely irrelevant who heads a caretaker government as they are constitutionally constrained as to what they can do, regardless of who they are. Therefore, if the Johnson government does not keep to the caretaker conventions then it should be straightforward to find someone who can keep the government going until the current crisis is resolved, probably via an election or referendum.

Boris Johnson has stated that he needs to prorogue Parliament in order to bring forward a “new, bold legislative agenda for the renewal of our country after Brexit”. However, if the caretaker conventions were applied to the Johnson government then it would be constitutionally prohibited from implementing new policy initiatives or making significant financial commitments, so there would be little point in proroguing Parliament for that purpose.

Given that invoking the caretaker conventions outside of purdah is the government equivalent of putting a child on the naughty step, such an approach would make clear Parliaments displeasure at the way it has been treated by the government. Constitutionally, the PM’s authority comes from the confidence of Parliament, and there is serious doubt whether Johnson has that confidence. Parliaments authority comes not from the Executive but from the UK constitution, in that parliamentary sovereignty is the bedrock of the UK constitution. As Paul Craig so eloquently said “The very idea that Parliament can be swept aside because its view does not cohere with the executive is to stand principle on its head.”¹⁰

Whilst the Johnson interim government is acting like a government with a clear mandate, the constitutional reality is that it does not have a clear Parliamentary mandate for what it is proposing, and until it receives that mandate from the House, it is limited to undertaking routine tasks only.

What are the caretaker conventions, and why do they matter?

The caretaker conventions apply when a government is not responsible to Parliament because it has either lost the confidence of the lower House or it cannot establish that it holds the confidence of the lower House. The caretaker conventions may be triggered:

1. where a government has not yet established the confidence of the lower House, such as a new government that has been appointed after the fall of the previous government, but has not yet faced Parliament and established that it holds confidence¹¹.

This is arguably the position of the Johnson government, as the confidence of the House in the government is very much in question, given that the party has just lost its majority. Furthermore, Parliament has repeatedly demonstrated its opposition to no deal¹², which interim Prime Minister Boris Johnson is openly advocating as his Brexit strategy.

The government has clearly demonstrated its reluctance to be held accountable by Parliament. Michael Gove has been reportedly advising that business should be frozen in the House of Commons in September to avoid proposed legislation turning into a vote of confidence against the government, and the government appears to be intending, at Jacob Rees Mogg’s suggestion, to pass the six statutes that are legally necessary in order for Brexit to take place via statutory instrument rather than by an Act of Parliament¹³.

Mr Johnson’s actions in proroguing Parliament early, ostensibly to launch a “new bold and ambitious domestic legislative agenda for the renewal of our country after Brexit” (which he has no constitutional authority to launch if he is deemed head of a caretaker Government by Parliament), has triggered considerable criticism from senior parliamentarians from across both sides of the House who view it as deeply unconstitutional, and a blatantly deliberate attempt to restrict parliamentary time to prevent Parliament debating the issue, and pass measures to force the government to abandon the no-deal Brexit strategy the House has already rejected as unacceptable in previous votes.

These are not the actions of a PM and a government comfortable with the support they are likely to receive from Parliament – these are the actions of a government and PM that believes it does not have the confidence of the House, and therefore not only lacks democratic legitimacy, but is also doing everything in its power to avoid having that confidence tested.

Under these circumstances it would seem that the Johnson government’s status meets the criteria of a caretaker government, and the caretaker conventions should apply.

Constraints on caretaker governments and implications for Brexit

During the period where a caretaker government is in power, whilst it retains its full legal powers, it is constrained by convention in how it should operate because it is not, or cannot be held, accountable to Parliament.

A caretaker government, therefore,‘has legal but not political legitimacy’¹⁴. The restrictions that apply to a caretaker government are also set out in the Cabinet Manual of 2010. It states:

“As long as there is significant doubt following an election over the Government’s ability to command the confidence of the House of Commons, certain restrictions on government activity apply¹⁵;

While the government retains its responsibility to govern and ministers remain in charge of their departments, governments are expected by convention to observe discretion in initiating any new action of a continuing or long-term character in the period immediately preceding an election, immediately afterwards if the result is unclear, and following the loss of a vote of confidence. In all three circumstances essential business must be allowed to continue¹⁶.

During this period, the government retains its responsibility to govern, ministers remain in charge of their departments and essential business is carried on. Ministers continue in office and it is customary for them to observe discretion in initiating any action of a continuing or long-term character. This means the deferral of activity such as: taking or announcing major policy decisions; entering into large/contentious procurement contracts or significant long-term commitments; and making some senior public appointments and approving Senior Civil Service appointments, provided that such postponement would not be detrimental to the national interest or wasteful of public money”¹⁷.

Blackburn commented¹⁸ that when the Cabinet Manual was being drafted in 2010/11 it was envisaged that these restrictions on government activity would extend to a post election period when the UK did not have a stable government¹⁹ and the caretaker conventions could apply for months after an election particularly where a minority Government's position in the House of Commons was considered politically fragile, with a real possibility of losing a confidence motion or a second general election being called. Therefore, it would be perfectly reasonable to consider the caretaker conventions to be applied to the Johnson Government over a period of months.

A B Keith²⁰ summarised the constitutional position as follows:

“It is perfectly clear on principle that a Government which is defeated or on the verge of defeat is not entitled to exercise the full authority of a Government resting on the will of the people, and that pending its rehabilitation, if that is possible, it should restrict its activities to routine duties, leaving to its successor, or to itself if restored to authority, the duty of decision on all important issues”²¹.

The position of the Johnson Government will only change when:

1) Boris Johnson passes a vote of no confidence and demonstrates that he has the support and confidence of the House for his no deal policy, or

2) Boris Johnson fails a vote of no confidence, and a new government can be formed.

It therefore follows that Brexit, constitutionally speaking, should not be implemented until a PM can demonstrate that its Brexit policy has the support of the House of Commons.

The caretaker conventions may also be triggered:

• where a government has lost confidence mid-term, such as through a vote of no-confidence, but continues in office pending an election or the appointment of a new government²²;

• where a government has resigned from office, but continues governing until a new government can be formed²³.

In relation to the first point, if the Johnson government failed a Vote of No Confidence then the caretaker conventions would apply, and the government could continue in office until a general election took place. However, whilst the Johnson government could remain in office in that situation, as a caretaker government it would not have the same authority as a PM with the confidence of the House.

As a caretaker government the Johnson government is constitutionally barred by convention from taking or enacting ‘irrevocable decisions which its successors would not be free to change.’²⁴ This constraint on caretaker governments is, in part, related to the constitutional principle of parliamentary sovereignty, under which the current Parliament is not capable of binding a future Parliament.

Brexit is an important issue that needs to be resolved, but given that Boris Johnson was elected by a mere 92,000 Conservative party members, that his government has not been constituted through a general election, and he has not demonstrated that he has the support and confidence of the House, it should be neither he nor his government that delivers Brexit, as it is highly questionable whether he has the constitutional authority to do so.

The Government that delivers Brexit must demonstrate that it has the confidence of the House of Commons before it can enact anything as irrevocable as the UK leaving the EU.

Status of the caretaker conventions in law

It should be noted that the caretaker conventions are political conventions that are not generally legally binding. They do not amount to a legal constraint upon executive power, but are usually effective political constraints.

They cannot be enforced by a court although they may be recognised by courts and even altered by them. For example in Alani v. Canada (Prime Minister), 2015 FC 649 it was argued that constitutional conventions were not enforceable by a court. The Canadian court held that if there was a valid constitutional convention, it was clear that the court would not enforce it, but the court could make declarations as to its content.

Obviously, that position would change if the Houses of Parliament were to pass a Caretaker Conventions Act, which would define the principles that would apply to caretaker governments and make them legally enforceable by the courts²⁵. Doing so could not only help stop a no deal Brexit by the Johnson government but would also make clear the constraints that any caretaker government would be subject to, including a caretaker government led by Jeremy Corbyn or a government of national unity, set up with the aim to prevent a no deal Brexit.

Enforcement of the caretaker conventions by the Queen?

Where there is direct conflict between the Government, which is a government appointed by the Queen (hence Her Majesty’s Government) and Parliament, the Queen is placed in a very difficult constitutional position, where different conventions may also conflict: by convention, the Queen does not involve herself in parliamentary politics, leaving disputes to be resolved in Parliament. However, the principle that Parliament is sovereign is long established and to avoid her government, acting in a way that opposes the will of Parliament, and without the confidence of the House, the Monarch could fall back upon the provisions of the caretaker conventions, once they were held expressly to apply. The caretaker conventions could apply by Parliament making it clear (through a majority signing a letter or other means) that it does not have confidence in the PM and/or the Government.

According to the Veiled Sceptre²⁶ the Queen is entitled to enforce the caretaker conventions in the following ways:

“until confidence can be determined on the floor of the House and there is doubt as to whether the government holds the confidence of the House, the Queen is entitled (but not obliged) to defer acting upon the government’s advice to act in a manner that would breach the caretaker conventions until such time as confidence is determined.”²⁷

The Queen would therefore have been entitled to defer making a decision on the prorogation of Parliament until Boris Johnson demonstrated he had the confidence of the House if the caretaker conventions were held to be expressly applying.

Given that the caretaker conventions are not currently explicitly applying, the provisions of the Fixed term Parliaments Act 2011, which removes the Queens prerogative with respect to dissolutions, applies. However, there are other factors that also come into play when considering the legality and constitutionality of proroguing Parliament for an extended period where confidence in the government is in doubt, and Parliament is being dissolved to minimise the chances of the government losing such a vote.

As Anne Twomey²⁸ notes,

“it is generally regarded as constitutionally appropriate for a head of state to refuse a dissolution to an incumbent chief minister who has not won a majority in an election and seeks a dissolution before Parliament has met and determined confidence in anyone to form a government”²⁹

Forsey³⁰ went further, contending that if ‘a motion of censure or want of confidence is under debate but has not yet been voted on, and the Cabinet tries to forestall a probable or even possible defeat by asking for dissolution, then it is clearly the Crown’s duty to refuse.’ ³¹

In the UK, the Queen’s prerogative with respect to dissolutions has been removed, or at least placed in abeyance, with the passing of the Fixed term Parliaments Act 2011, although these principles and conventions may still have a bearing where the legality and constitutionality of a decision to prorogue Parliament is under review by the courts.

However, having already granted permission to prorogue Parliament, the issue may yet return to the Queen should the Johnson government lose a parliamentary vote of no confidence before the end of October 2019, and attempt to call a General Election for after Brexit, or be made subject to the Caretaker Conventions by Parliament prior to Parliament being prorogued.

So when do the Caretaker Conventions apply?

Again, the UK Cabinet Manual specifies that the caretaker conventions will apply:

• in the period immediately preceding an election (usually once an election has been called),

• immediately afterwards if the result is unclear and

• following the loss of a vote of confidence (which is possible in September/October 2019).

In any of these situations, the caretaker conventions apply, and would certainly apply should Boris Johnson call a general election, or lose a vote of no confidence, or be made expressly subject to them by Parliament. Either way, his actions and the actions of his interim government should be constitutionally constrained going forward once these conventions are expressly applying.

According to the Veiled Sceptre³²:

“where the government has been defeated in a vote of no-confidence, or has resigned, or has been defeated at an election, but remains in office as a caretaker government, the head of state is entitled (but not obliged) to reject its advice to act in a manner that would breach the caretaker conventions”³³.

On the principle that a caretaker government should not bind a future Parliament or undertake any irrevocable act, if Boris Johnson were to lose a vote of no confidence or call a General Election before the end of October 2019, the Queen could refuse to allow an election to take place after Brexit and could instead stipulate that either

• an election would need to take place before the end of October 2019, or

• that an election could be called after the 31 October 2019, subject to the caveat that an extension to Article 50 had been made and accepted.

Applying these principles, it is quite possible that the Queen would not agree to an election taking place after the UK were due to leave the EU, as that would breach the caretaker conventions. As Sir Paul Hasluck eloquently stated:

“No new decisions on matters of major policy should be taken (by a caretaker government) and no appointments to high office should be made. The common sense of this convention is to avoid a situation in which an expiring government may do something, which a month or so later, an incoming government may immediately try to cancel. The philosophy of it is that if a question on major policy is being put to the electorate at an election, a government should not make final decisions on that question before the electorate has given its answer.”³⁴

Alternatively, the Johnson interim government will need to demonstrate that it has the support and confidence of the House for its no deal policy, which it seems highly unlikely to receive. It is only with that confidence of the House that a no deal Brexit could take place.

Summary

In conclusion, it can be argued that the Johnson government is a caretaker government as it does not hold the confidence of the House.

The caretaker conventions apply when either a PM does not have the confidence of the House, or has lost a vote of no confidence, or once a general election has been called. If a majority of Members of the lower House signed a letter indicating no confidence in the government, then this should confirm the application of the caretaker conventions.

Once the caretaker conventions are applying, the Johnson interim government should confine itself to routine tasks until either it secures the confidence of the House for its no deal policy, or it fails a vote of no confidence and a general election is called or an alternative government is formed.

Furthermore, it does not have the authority to commit itself to big spending decisions or implement major policy changes, so the idea that the Johnson government is going to propose a big, bold legislative agenda without having the support of Parliament is constitutionally untenable This constraint applies to all caretaker governments, including a caretaker government headed by the Leader of the Opposition or a caretaker government of national unity.

Furthermore, once the caretaker conventions are deemed to be applying to the Johnson interim government then from that point on it does not have the constitutional authority to implement “irrevocable decisions which its successors would not be free to change”³⁵ such as a no deal Brexit. In the light of that, the Queen would be entitled to defer making any decision which would breach the caretaker conventions, such as further proroguing Parliament to force through no deal, until it was clear that the interim PM had the confidence of the House.

Furthermore, whilst ordinarily the date of a general election is within the PM’s gift, that general principle does not apply where the caretaker conventions are applying. The Queen would be entitled, although not obliged, to reject advice from the interim PM to act in a manner that would breach the caretaker conventions³⁶, and could therefore reject any attempt by Boris Johnson to arrange the date of a general election only after the 31^st October 2019, after Brexit had theoretically taken place.

Therefore, if any UK government wants to enact Brexit it will need to secure the confidence of the House with regard to its Brexit policy. Without that, the government does not have the constitutional authority to proceed.

 

 

 

 

 

© Claire Bradley 22/08/2019