Does the PM’s refusal to resign mean the UK is in a ‘constitutional crisis’? That’s a vague notion, but I think the answer is that it implies he’s willing to create one very soon. Another way of framing the question is: At what point *must* Boris Johnson resign? /1
As I’ve explained in another thread, Johnson has no ‘personal mandate’ as Prime Minister: that’s a concept unknown to the British constitution. Johnson’s invocation of ‘his’ 14 million votes is a constitutional dead cat. /2
The Prime Minister’s legitimacy derives from their leadership of a party that can form a Government capable of commanding the confidence of the House of Commons. If Johnson is ousted as Conservative leader, constitutional principle will require him to resign as PM. /3
If the Conservative Party was unable to oust him as its leader (eg if the 1922 Committee fails to change its rules and organise a new vote of no confidence), the Opposition could move a motion of no confidence in the House of Commons. /4
If the Commons voted no confidence, Johnson would be constitutionally required to resign. It would then be open to the Queen to appoint as PM the person best placed to command the confidence of the Commons. Otherwise, there would need to be dissolution & a general election. /5
The principle that the PM must be able to *govern*, including by appointing Ministers to their Government, is so obvious that it is not generally articulated in constitutional texts. But it is surely an implicit constitutional principle. It seems Johnson cannot now govern /6
If, therefore, Johnson cannot populate his Government with Ministers, he will arguably be required, as a matter of constitutional principle, to resign, although a vote of no confidence would formally confirm that position. /7
It is not straightforwardly open to Johnson to escape a requirement to resign by calling a general election, because the Queen would arguably be entitled to refuse to dissolve Parliament in the current circumstances, as explained here. /8
Where does this leave us? Johnson plainly now lacks the confidence of most of his MPs and therefore the Commons, so it is arguably *already* his constitutional duty to resign, but a vote of no confidence will put that beyond doubt. /9
Johnson’s insistence he’ll carry on implies he’s willing to create a constitutional crisis. If he refused to resign following a vote of no confidence, the Queen would be entitled to dismiss him. It’s therefore constitutionally idiotic for him not to resign now. 10/10

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More from @ProfMarkElliott

Jul 6
A Conservative MP—James Duddridge, one of Boris Johnson’s PPSs—has just been on Sky News claiming that Johnson has sent him out to say that he has ‘listened’ today and, having done so, plans to continue as Prime Minister. I wonder what Johnson heard when he ‘listened’? /1
Whatever he heard, it was presumably distorted by his misguided notion that he has a ‘personal mandate’ consisting of the 14m votes cast for Conservative candidates at the last election. Our constitutional system accords no such personal mandate to a Prime Minister. /2
Rather, the Prime Minister’s authority hinges on their leadership of a party that can form a Government capable of commanding the confidence of the House of Commons—that is the essence of the UK system, which is not a presidential system. /3
Read 5 tweets
Jun 29
I listened carefully to Prof Boyle's evidence. As I understood him, he does not argue that the international law doctrine of necessity could save this legislation from unlawfulness, and bases himself instead on Art 16 NIP—which the Government *does not* propose to use. /1
If Art 16 NIP were invoked, it is far from clear to me that it would enable any, and certainly not all, of the things to be done that the NIP Bill proposes. (Boyle oddly, and in my view unsustainably, contends that the Bill envisages modest departures from the NIP.) /2
Nor do I accept Boyle's view that the NIP Bill should be understood as preparing the way for the use of Art 16: the scheme of the Bill is premised on carving out parts of the NIP, treating them as irrelevant in UK law, which doesn't readily align with the scheme of Art 16 NIP. /3
Read 5 tweets
Jun 29
The @CommonsNIAC hearing on the Northern Ireland Protocol Bill is just kicking off. Alan Boyle argues the Bill does *not* breach international law because it simply prepares the ground for the use of Article 16.…
But Boyle's position invites the question why the UK Government has not indicated any intention to use Article 16, and why it is instead relying on the clearly hopeless argument that the international law doctrine of necessity applies.
I find Boyle's position that the Bill provides for only very limited 'derogations' (his word) from the Protocol very odd. Other experts disagree. Eg @CSBarnard24 has said the Bill 'drives a coach and horses through the Northern Ireland Protocol' (…)
Read 8 tweets
Jun 26
Two stories on the front of this morning's @ObserverUK neatly sum up where we are, constitutionally speaking, in the UK right now. /1
First, the PM reveals he has a 'massive project to change ... the constitution of the country'. This presumably refers in part at least — although frankly, who knows? — to his plans to reduce human rights protections by drastically weakening domestic courts' powers. /2
Second, we're told that 'a venture capital investor who has given the [Conservative] Party £200,000 has been made the "independent chair"' of the arts & media honours committee, and a member of the main committee that considers all such awards. /3
Read 5 tweets
Jun 24
Among the many obvious problems with this @MoJGovUK statement, one claim is objectively false. There was no manifesto commitment to replace the Human Rights Act. The House of Lords will therefore not be bound by the Salisbury Convention. /1
The Salisbury Convention does not legally limit the House of Lords' powers, but reflects a political understanding that it will not block Bills that implement manifesto commitments. Here's how the Joint Committee on Conventions defined it. /2…
The Joint Committee did not define 'manifesto Bills'. But the Bill of Rights does not seem to me to be one: there is no reference in the Conservative manifesto to it. All it says is that the Human Rights Act will be updated — not repealed and replaced. /3…
Read 6 tweets
Jun 22
The Bill of Rights Bill has just been published.

I'll tweet some thoughts as I read through it...…

It opens with an introductory clause setting out its aims. Interesting reference to UK as a 'parliamentary democracy': reflects narrative adopted by Raab in commons earlier — taking back control from courts and, in particular, the European Court of Human Rights. /2
Clause 3 seems to replace sections 2 and 3 HRA. /3
Read 34 tweets

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