It came as quite a shock - though not, perhaps, a surprise when the Prime Minister was admitted to hospital last Sunday. Someone whose job inevitably means meeting lots of people face to face is highly vulnerable to infection from the coronavirus no matter how carefully they try to observe the rules on social distancing. So it was with Boris Johnson and he seems to have contracted a pretty nasty dose. His sudden disappearance from the centre of government exposes how fuzzy our notoriously opaque constitution is when it comes to the question of how power should be exercised and who should exercise it when the head of government becomes indisposed. Should we be worried? And should we, once calmer times return, find a better way of doing things?
When the Prime Minister was first taken in to St Thomas’ Hospital just over the river from Westminster, Downing Street was anxious to reassure us all that the government of the country was unimpaired. Mr Johnson was still able to direct affairs from his hospital bed, we were told. When he was moved into intensive care the following day the reassurance continued. A clear line of command had been established. The Prime Minister had instructed that Dominic Raab, the Foreign Secretary and ‘First Secretary of State’, should act as his deputy ‘where necessary’ He would chair the daily Covid-19 committee in Mr Johnson’s place and the other three key ministers – the Chancellor, Rishi Sunak, the Health Secretary, Matt Hancock, and the cabinet Office minister, Michael Gove, would continue to direct the government response to the crisis. In short, it would be business as usual.
But it was once that phrase ‘when necessary’ was probed a little that things started to look rather less simple. Mr Raab himself was quick to disabuse anyone of the idea that he had become, even temporarily, an ‘acting’ prime minister, fully equipped with all the powers of that office. Any decisions that might depart from those that the real prime minister had already made would need to be taken by the Cabinet as a whole, he said, and not just by him. Constitutional experts then weighed in to add that Mr Raab’s powers would indeed be quite limited. For example, he would not be able to sack ministers or appoint new ones and any decisions he took could, in theory, be overturned by the Cabinet – a Cabinet of unsackable ministers. And we later learned that Mr Raab would not be performing one of the central constitutional functions of a prime minister: informing and advising the Queen about the conduct of her government in the weekly audience at Buckingham Palace. That’s an exchange most recently conducted by phone, of course. Her Majesty would not be expecting his calls!
It is as if we have suddenly entered an era of government in which the role of prime minister has been suspended rather than carried out by someone else.
In practical terms this may not matter very much. As I pointed out last week, most of what government is about in this crisis is essentially administrative – making sure there are enough hospital beds, ventilators, doctors and nurses, and ramping up the scale of testing. The only ‘political’ decision in the government’s ‘pending’ tray is when to ease the lockdown, something that was due to be considered next Monday. All we’re promised now is an ‘update’. But this downgrading of what we are to expect has nothing to do with the Prime Minister being in hospital. It’s due to there not yet being enough scientific evidence of where exactly we have reached in the trajectory of the pandemic for a sensible decision (other than just carrying on with the lockdown) to be made. Mr Raab and his colleagues can, for the time being, just continue administering.
It’s at the rather more rarefied level of constitutional theory and practice that concern should perhaps arise. Rarefied it may be, but one day, even if not now, it could really matter that we sort out to our satisfaction what should happen when a prime minister becomes indisposed.
One set of experts would say there is absolutely nothing to be bothered about here: what has happened this week is wholly in line with how the British constitution is set up to produce stable and legitimate government. The core of this argument is that British government is Cabinet government. What has happened this week since Mr Johnson went into hospital is completely in accord with it.
To put it a bit more formally, power in this country resides in what is called ‘the Sovereign in Parliament’. In effect, that means that what Parliament says goes, and Parliament, in practical terms. means the House of Commons. So the public elects a House of Commons, and the Queen asks the leader of the largest party elected to form a government – a Cabinet government – to run things. That Cabinet is then answerable to Parliament which can defeat it if it wants to. It’s true, according to this constitutional view goes, that the Prime Minister is primus inter pares, first among equals, in his Cabinet, but they are still all equals. So what really matters in British government is the Cabinet.
To all of which others would say: ‘Up to a point, Lord Copper’. Cabinet government may in theory be what we’ve got, they argue, but it’s not at all like that in practice. What we have is something quite different, namely prime ministerial government or, as some would go so far as to call it (and sparing the Queen’s blushes), ‘presidential’ government in all but name.
Those who claim this cite a whole range of evidence to back it up. First general elections, which provide the democratic legitimacy for determining who should govern, may ostensibly be about selecting MPs to create a majority for one party or another in the House of Commons but they are, in practice, just as much if not more about choosing who should be prime minister. Ask any canvasser for the Labour Party during the most recent election what exercised voters they met on the doorstep most, and they’re likely to say ‘Jeremy Corbyn’.
Secondly, the Prime Minister picks his own Cabinet and can select and drop ministers at will. Only in exceptional circumstances are the roles reversed: power rests with the PM and not with ministers dependent upon him for their jobs.
Thirdly, many decisions are not actually taken by the Cabinet itself, merely rubber-stamped by it after they’ve been made elsewhere. Remember Tony Blair’s ‘sofa government’? And a prime minister exercises a huge range of powers that never get anywhere near the Cabinet anyway.
If you want confirmation that modern British government is essentially run by the Prime Minister and his team of advisers rather than by the Cabinet, a reported remark by a ‘government aide’ on Monday night will, I suggest, provide it. The ‘source’, referring to the Prime Minister’s chief adviser, Dominic Cummings, who has himself had to go into isolation because of the virus, was reported in The Times as saying: ‘There is a political vacuum in Downing Street. Since Dom went off it’s not been clear who’s actually running things.’ The source didn’t suggest the Cabinet might be ‘running things’. It is presidential government in all but name.
At this point Theresa May, if she’s reading this, may feel inclined to ring in to register an apoplectic guffaw. “If only…!” She might add: “It wasn’t at all like that for me!” And indeed it wasn’t. But actually her case proves the point. The reason why she became a prisoner of her Cabinet (with its multiple resignations) was that she took a gamble by calling an election, which she conducted so badly it deprived her of her majority in the House of Commons. From then on she was a lame duck prime minister. But the original point of taking the gamble was to increase her majority precisely so that she would then be able to dominate her Cabinet and govern presidentially. It’s perhaps also worth pointing out that the government she was forced to preside over so weakly was not exactly an advertisement for the blessings of Cabinet, as opposed to prime ministerial, government.
The question, then, is this. If we have, in practice, a form of presidential government, shouldn’t we think about actually setting up a system that makes it watertight – including some more formal mechanism for keeping the show on the road when the prime minister can’t carry on doing the job. If President Trump were to go down with the virus, be admitted to hospital, and require intensive care, it is inevitable that his vice president, Mike Pence, would immediately step into his shoes and carry on running the government. Indeed if, in these circumstances, Mr Trump were not to survive the illness, Mr Pence would, by law, become the new president and stay in office until the time of the next presidential election.
But what would happen here if, for whatever reason, Mr Johnson were not able to return to his job? What then? The formal answer is that the Conservative Party would need to elect a new leader who would then become prime minister. But, given the current procedures for electing leaders by a vote of all party members, this would take months. It is unimaginable that this tortuous process could be allowed to play itself out at a time of national crisis like this. So, no doubt, senior ministers and ‘men in grey suits’ (it’s always men) on the Tory benches would get together in a huddle and ‘sort something out’, picking someone to take on the job till calmer times.
But is such a ‘make-do-and-mend’ approach to such an important issue good enough? We may take pride in the eccentricity of having an unwritten constitution, of following opaque procedures and of improvising how and when we have to, but is it satisfactory?
Maybe it is. Maybe it isn’t. What’s your view?