Introduction
This report, prepared for the House of Commons Public Administration and Constitutional Affairs Committee, examines the constitutional conventions governing the choice and appointment of the Prime Minister (PM) in the United Kingdom. Constitutional conventions are unwritten rules that guide political behaviour and are central to the operation of the UK’s uncodified constitution. The Committee has received evidence from various stakeholders, including Singh LJ, who reiterated a view from his judgment 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). This report aims to define constitutional conventions, outline those relevant to the PM’s appointment, provide historical examples to illustrate their application, assess the accuracy of Singh LJ’s statement, and evaluate the role of judicial dicta in recognising and enforcing such conventions. Supported by authoritative sources, this analysis seeks to clarify the conventions’ operation and their practical implications.
What Are Constitutional Conventions?
Constitutional conventions are non-legal, customary rules that regulate the conduct of those exercising public power within the UK’s constitutional framework. Unlike statutes or common law, conventions are not enforceable in courts but are binding through political and moral obligation. As Dicey (1885) explains, conventions are “rules for determining the mode in which the discretionary powers of the Crown (or Ministers as servants of the Crown) ought to be exercised” (Dicey, 1885, p. 417). They often fill gaps left by formal legal structures, ensuring the constitution operates smoothly. For instance, conventions dictate how the monarch exercises prerogatives, such as appointing a PM, in alignment with democratic principles. Scholars like Jennings (1959) argue that conventions are established through consistent practice, accepted as binding by relevant actors, and underpinned by a sense of obligation (Jennings, 1959). Their unwritten nature, however, can lead to ambiguity, as their precise content often depends on historical precedent and political consensus.
Conventions Relating to the Choice and Appointment of the Prime Minister
Several key conventions govern the choice and appointment of the PM. Firstly, the monarch must appoint as PM the individual who commands the confidence of the House of Commons, typically the leader of the party with the majority of seats following a general election. This ensures that the PM has parliamentary support to govern effectively (Bogdanor, 1995). Secondly, while the monarch formally appoints the PM under the royal prerogative, this decision is not discretionary; the sovereign acts on the basis of established political realities, avoiding personal preference. A further convention holds that an outgoing PM remains in office until a successor is identified, ensuring continuity of government. Historically, it has been assumed that the outgoing PM advises the monarch on their successor, particularly in ambiguous situations such as a hung parliament. However, this advice is not binding, and the monarch may consult other political figures or act on broader considerations (Brazier, 2008). These conventions collectively balance monarchical tradition with democratic accountability, though their application can vary depending on political circumstances.
Historical Examples Illustrating These Conventions
Historical examples demonstrate how these conventions operate in practice and provide insight into the accuracy of Singh LJ’s statement. Following the 1951 general election, King George VI appointed Winston Churchill as PM after the Conservative Party secured a majority, illustrating the convention that the monarch appoints the leader who commands Commons’ confidence. Churchill’s appointment was straightforward, with no evidence of direct advice from the outgoing PM, Clement Attlee, suggesting that such advice is not always necessary (Bogdanor, 1995).
A more complex scenario arose in 2010 after the general election produced a hung parliament. Gordon Brown, the incumbent PM, remained in office while coalition negotiations occurred, adhering to the convention of continuity. Brown eventually resigned, advising Queen Elizabeth II to appoint David Cameron after the Conservatives and Liberal Democrats formed a coalition. Here, the outgoing PM’s advice aligned with political reality, supporting Singh LJ’s view to some extent (Brazier, 2008). However, in 1974, when Edward Heath attempted to form a government despite losing seats, Queen Elizabeth II did not immediately appoint Harold Wilson until it became clear Heath could not secure confidence. Heath’s advice was not decisive; the monarch acted based on broader consultations, indicating that the outgoing PM’s advice is not always the sole determinant (Bogdanor, 1995). These examples partly counter Singh LJ’s assertion, as they show that while an outgoing PM may offer advice, the monarch retains the discretion to act based on wider evidence of parliamentary support.
Assessing Singh LJ’s Statement
Singh LJ’s claim that there is a “well-established constitutional convention” that the sovereign appoints the next PM on the advice of the outgoing PM is only partially accurate. While historical practice, such as in 2010, shows instances where outgoing PMs have advised the monarch, this is not a universal or binding rule. As Brazier (2008) notes, the sovereign’s primary duty is to appoint a PM who can command Commons’ confidence, and advice from the outgoing PM is merely one factor among others. In situations of political uncertainty, such as in 1974, the monarch may rely on consultations beyond the outgoing PM’s advice. Therefore, Singh LJ’s statement overstates the convention’s firmness; it is better described as a customary practice rather than a strict obligation. This discrepancy highlights the fluid nature of conventions and the challenges of defining them with precision in a judicial context.
The Value of Judicial Dicta on Constitutional Conventions
Judicial dicta, such as Singh LJ’s statement, have limited value in recognising and enforcing constitutional conventions due to their non-legal nature. Courts in the UK do not enforce conventions, as established in cases like *Madzimbamuto v Lardner-Burke* (1969), where Lord Reid confirmed that conventions are political, not judicial, responsibilities. Judicial comments on conventions, while potentially persuasive, lack binding authority and serve primarily as obiter dicta—observations rather than legal rulings (Elliott & Thomas, 2017). Singh LJ’s view may carry intellectual weight, reflecting a particular interpretation of historical practice, but it does not establish or alter the convention itself. Indeed, over-reliance on judicial statements risks misunderstanding conventions’ dynamic, politically driven character. Their recognition and enforcement depend on political actors’ adherence, not judicial pronouncement. Therefore, while Singh LJ’s statement contributes to academic and public discourse, its practical impact on shaping or enforcing conventions remains negligible.
Conclusion
This report has outlined the nature of constitutional conventions as unwritten rules guiding political behaviour, focusing on those relevant to the choice and appointment of the Prime Minister. Key conventions ensure the monarch appoints a PM who commands Commons’ confidence, acts without personal discretion, and maintains continuity of government. Historical examples, such as the appointments in 1951, 1974, and 2010, illustrate these principles but also reveal that the outgoing PM’s advice is not always decisive, challenging the universality of Singh LJ’s assertion. Furthermore, judicial dicta on conventions, while informative, lack authority to recognise or enforce them, as conventions remain political rather than legal constructs. For the Committee, these findings underscore the importance of political consensus in upholding conventions and suggest that codifying or clarifying such practices might reduce ambiguity in future appointments. The flexible nature of conventions, however, remains both their strength and their limitation in adapting to the UK’s evolving political landscape.
References
- Bogdanor, V. (1995) The Monarchy and the Constitution. Oxford University Press.
- Brazier, R. (2008) Constitutional Practice: The Foundations of British Government. Oxford University Press.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Elliott, M. and Thomas, R. (2017) Public Law. Oxford University Press.
- Jennings, I. (1959) The Law and the Constitution. University of London Press.
