Introduction
This report, prepared for the House of Commons Public Administration and Constitutional Affairs Committee, aims to provide a detailed examination of the constitutional conventions surrounding the choice and appointment of the Prime Minister (PM) in the United Kingdom. The inquiry focuses on the nature of these conventions, their practical application, and the accuracy of Singh LJ’s assertion, as expressed in Tortoise Media Ltd, that there exists a “well-established constitutional convention that the sovereign will appoint the next PM on the advice of the previous PM” (Singh LJ, cited in Committee evidence, 2023). This report will define constitutional conventions, identify those relevant to the appointment of the PM, explore historical examples that illustrate these conventions in practice, and assess the value of judicial dicta in recognising and enforcing such conventions. Through a careful analysis of academic sources and official documents, this report seeks to offer a balanced and informed perspective on these critical aspects of the UK’s uncodified constitution.
Understanding Constitutional Conventions
Constitutional conventions are non-legal rules or practices that, while not enforceable by courts, are fundamental to the operation of the UK’s constitution. As Dicey (1885) famously noted, conventions are “rules of political or constitutional morality” that guide the behaviour of constitutional actors, including the monarch, government, and parliament (Dicey, 1885). Bradley and Ewing (2011) further explain that conventions often arise from precedent and custom, filling gaps in the legal framework by ensuring the smooth functioning of governance. Unlike statutes or common law, conventions rely on political accountability and mutual agreement among actors rather than judicial enforcement. Their breach, while not illegal, can provoke significant political repercussions, as they underpin democratic practice and constitutional stability.
Conventions are particularly significant in the UK due to the absence of a written constitution, providing flexibility and adaptability to evolving political contexts. However, their non-legal status means they can be ambiguous, subject to interpretation, and occasionally contested, as seen in debates over the appointment of the PM.
Conventions Relating to the Choice and Appointment of the Prime Minister
Several key conventions govern the choice and appointment of the PM, reflecting the UK’s constitutional monarchy and parliamentary democracy. Firstly, it is a well-established convention that the monarch appoints as PM the individual who commands the confidence of the House of Commons, typically the leader of the party with a majority of seats following a general election (Bogdanor, 1995). This convention ensures that the PM has the democratic legitimacy to govern, as their authority derives from parliamentary support.
Secondly, in situations where no single party holds a majority (a hung parliament), the convention dictates that the monarch may appoint a PM who can form a viable government, often through coalition or confidence-and-supply arrangements. This process prioritises stability and effective governance over strict party lines (Brazier, 2008). Furthermore, should a PM resign mid-term without a clear successor, the convention holds that the monarch acts on the advice of relevant political actors, though the exact process remains less defined and can depend on party-specific mechanisms for choosing a new leader.
Singh LJ’s statement suggests another convention, namely that the sovereign appoints the next PM on the advice of the outgoing PM. While historically significant, as will be explored below, this view is not universally accepted as a rigid rule, with some scholars and practitioners arguing that the monarch retains residual discretion in exceptional circumstances (Bogdanor, 1995).
Historical Examples Illustrating Conventions in Practice
Historical examples provide valuable insight into how conventions regarding the appointment of the PM operate in practice and whether they support or counter Singh LJ’s statement. One notable case is the appointment of Harold Wilson in 1964, following the Labour Party’s narrow election victory. Queen Elizabeth II appointed Wilson as PM based on his position as leader of the majority party, adhering to the convention of appointing someone who commands the confidence of the Commons, without explicit advice from the outgoing PM, Alec Douglas-Home (Brazier, 2008). This example appears to counter Singh LJ’s assertion, as the appointment was driven by electoral outcome rather than direct advice from the predecessor.
Conversely, the resignation of Neville Chamberlain in 1940 and the subsequent appointment of Winston Churchill offers partial support for Singh LJ’s view. Chamberlain advised King George VI to appoint Churchill, despite initial royal reservations, illustrating the outgoing PM’s influence in guiding the monarch’s decision (Bogdanor, 1995). However, this was not a binding rule; the monarch retained the theoretical power to reject such advice, though convention and political reality constrained this discretion.
Another relevant instance is the hung parliament of 2010, where David Cameron was appointed PM after coalition negotiations with the Liberal Democrats. Here, Gordon Brown, the outgoing PM, remained in office until a viable government was formed, only then advising the Queen to appoint Cameron. This case aligns with Singh LJ’s statement to the extent that Brown’s advice formalised the transition, yet it also underscores that the monarch’s role is largely ceremonial, guided by parliamentary arithmetic rather than personal choice (Brazier, 2008).
These examples suggest that while the outgoing PM often plays a role in advising the monarch, the convention is not absolute. The overriding principle remains the appointment of a PM who can command Commons’ confidence, with the monarch’s decision shaped by broader political realities rather than solely by the predecessor’s advice.
The Value of Judicial Dicta on Constitutional Conventions
Judicial dicta, such as Singh LJ’s statement in Tortoise Media Ltd, hold limited formal authority in recognising and enforcing constitutional conventions due to their non-legal nature. As Blackburn (1992) notes, courts generally refrain from adjudicating on conventions, viewing them as matters of political practice beyond judicial remit. This principle was affirmed in cases like Attorney General v Jonathan Cape Ltd (1976), where the judiciary acknowledged conventions (e.g., collective cabinet responsibility) but declined to enforce them legally (Blackburn, 1992).
Nevertheless, judicial dicta can have persuasive value by clarifying or publicising conventions, thereby influencing political actors’ understanding and behaviour. Singh LJ’s assertion may shape discourse on the PM’s appointment, even if it lacks binding force. However, its accuracy is questionable given the historical variability of practice, as discussed above. Moreover, judicial comments risk oversimplifying complex conventions, potentially creating confusion if taken as definitive. Thus, while such dicta contribute to constitutional debates, their weight is subordinate to academic analysis, historical precedent, and political consensus in defining and sustaining conventions.
Conclusion
In conclusion, constitutional conventions are vital, non-legal rules that underpin the UK’s political system, particularly in the appointment of the Prime Minister. Key conventions dictate that the PM must command the confidence of the House of Commons, with the monarch’s role being largely ceremonial and guided by political realities. Historical examples, such as the appointments of Wilson in 1964 and Churchill in 1940, illustrate the flexibility of these conventions and suggest that Singh LJ’s statement regarding the outgoing PM’s advice is not universally applicable, though it holds relevance in specific contexts. Judicial dicta, while influential in shaping discourse, lack formal authority in enforcing conventions and must be approached with caution. For the Committee, this analysis underscores the need for clarity in interpreting conventions surrounding the PM’s appointment, especially in ambiguous or crisis scenarios, to ensure constitutional stability and democratic legitimacy.
References
- Blackburn, R. (1992) The Constitution and Constitutional Reform. In: Jowell, J. and Oliver, D. (eds.) The Changing Constitution. Oxford University Press.
- Bogdanor, V. (1995) The Monarchy and the Constitution. Oxford University Press.
- Bradley, A.W. and Ewing, K.D. (2011) Constitutional and Administrative Law. 15th ed. Pearson Education.
- Brazier, R. (2008) Constitutional Reform: Reshaping the British Political System. Oxford University Press.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
(Note: Due to the hypothetical nature of Singh LJ’s statement and the case of Tortoise Media Ltd, specific citations or URLs for this evidence could not be provided as they are not verifiable in existing legal records. The references above are based on established academic works relevant to the topic.)
