Category: Constitutional and Legal History

Must Prime Ministers fail? A constitutionalist perspective

16th May 2026

This was a week when we got to consider the office of Prime Minister, again.

The current occupant has somehow, through a sequence of decisions and non-decisions, made themselves a lame duck – despite a thumping majority two years ago and three years of a parliamentary terms to go. It is quite an impressive under-achievement, given the powers and privileges a Prime Minister has at their disposal.

But for a Prime Minister to be on their way out is, as this blog has stated before, not unusual. Since 1974 every single Prime Minister has come to office or left office between general elections, and recently both. The classic model of a Prime Minister coming and leaving power at a general elections has not happened in over fifty years.

What, however, is becoming distinctive is the speed with which Prime Ministers come and go. Since 2016 the churn has been quite remarkable. The long terms of Thatcher (eleven years) and Blair (ten years) now seem form another age.

Why?

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Alan Beattie of the Financial Times observes:

“If you think the UK changes PMs too often, which of the last 5 departures were mistakes? Cameron shd have stayed after losing the referendum? May after deadlock with her deal? Johnson after Partygate? Truss after meltdown? And Sunak lost an election.”

He makes a good point: circumstances and events explain each of the recent changes which, taken together, appears to be rapid churn, if not turmoil.

And Beattie links to this fine article by Robert Shrimsley which avers:

“Britain is not ungovernable. It has just been very badly governed. In particular, it has endured a decade of woefully inept leadership.”

The problem thereby is not so much with the office, but with its occupants.

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Over at his Substack Sam Freedman offers a view which mixes structural and personal points:

“Why do prime ministers keep failing?

“[One suggested reason] is that we’ve just had a really bad run of leaders who either lacked basic political skills, were temperamentally unsuited for the job, or were Liz Truss.

“[But] there are some deeper structural problems that are undoubtedly making it harder to be prime minister.

“[…] there are some uniquely British challenges with being prime minister that make it harder than necessary. The role has evolved in a typically haphazard way over the decades, without much thought as to its purpose.”

Freedman’s analysis is typically well-informed and insightful.

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My view, which I had already put together before I saw any of the above commentators, is that there is structural gap in our constitutional arrangements where the office of the Prime Minister should be.

Indeed, until the lifetimes of people still alive, the constitutional fiction was that the office of Prime Minister had no legal existence at all.

Other than with a few express statutory powers, the powers (and privileges) of the Prime Minister are still almost entirely to be inferred from the royal prerogative and from being the head of a Commons majority. Prime Ministers can remove ministers (and civil servants) from their jobs and impose whips on backbenchers, and make certain other decisions.

But unless you have an individual of exceptional charisma and/or capacity, coupled with reliable allies in other cabinet jobs and substantial backbench support, a Prime Minister is vulnerable to political downturns.

In this way, despite what pundits sometimes say otherwise, we very much have a parliamentary and not a presidential system.

And so when one faces a sequence of difficult political challenges, as the United Kingdom has had since 2016, the tendency will be for Prime Ministers to fold.

Part of it is as Beattie and Shrimsley point out: the occupants have not been up to the challenges they have faced. But the occupants also have not had firm places to stand.

The job of Prime Minister is, for the reasons detailed by Freedman, becoming more and more difficult to do. There is no particular reason to believe any successor to the current occupant will do any better job. (It is telling that many think the only viable candidate is not one of the already elected members of parliament.)

And so, as I set out, over at Prospect, there is a prime minister-shaped hole in our constitutional arrangements.

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Changing Prime Ministers mid-term and the constitution

12th May 2026

How gaining or losing a Prime Minister between general elections in the norm and not the exception

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There is perhaps a ‘classic’ view – which like many ‘classic’ views is not really true – that a Prime Minister comes in with a general election and then goes out at a General Election.

Like Disraeli and Gladstone did in Victorian days, or Attlee did between 1945 and 1951.

But since 1974 that has not happened.

Every Prime Minister of the United Kingdom since 1974 has either taken office between general elections or lost office between general elections – and recently even both.

Some would say that 1974 is not a sound starting point, as Heath sought to stay on and do a deal after the February election, and we would have to go back to 1970.

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Those who came in between general elections since 1974: Callaghan, Major, Brown, May, Johnson, Truss, Sunak.

Those who left office between general elections since 1974: Wilson, Thatcher, Blair, Cameron, May, Johnson, Truss.

Those who did both: May, Johnson, Truss – though at least May and Johnson fought general elections during their term as Prime Minister.

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Compare and contrast that with parties losing office between elections: that rarely happens, even if we go back a long time.

In 1905 the Conservative and Liberal Unionist coalition lost office to the Liberals, months before a general election. Some of the national and wartime coalitions mid-century shifted between general elections. But straight party swaps are few.

More recently even the loss of an overall majority – in the late 1970s or the early 1990s – merely meant the minority administration staggered on.

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And so we have two cycles: the party cycle and the Prime Minister cycle.

The party cycle generally accords with general elections. Invariably the party in government who lose at a general election is the party which won the one before.

The Prime Minister cycle, however, only incidentally accords with general elections. Since 1974 general elections account for only a portion of the arrivals and departures from office.

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As we seem to be about to change (yet) another Prime Minister between general elections, it is useful to remind ourselves that we (still) have very much a parliamentary rather than presidential system of government.

Even those most presidential of Prime Ministers – Thatcher and Blair – left office mid-term.

Whilst they have office some Prime Ministers can be hubristic – think Johnson or Truss – but they quickly meet with Nemesis.

The body politic regurgitated and spat them out.

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And with Starmer, the surprise would be if he actually did lose office with a general election. If so, he would be the first Labour Prime Minister since Wilson between 1964 and 1970 to win and lose office at general elections.

But it always seems to take us by surprise when a Prime Minister loses office between general elections, as if some norm has been subverted.

The true subversion would be if a Prime Minister who won a general election was able to continue to defeat at a general election.

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An instance of the royal prerogative

All Souls’ Day, 2025

Why an Act of Parliament was not needed to remove the title from the former Duke of York

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The most fundamental feature of the constitution of the United Kingdom is the Crown.

At least, conceptually.

In one way or another the Crown invariably provides the ultimate source of power for the other elements of our constitutional order: Acts of of Parliament have effect once they have royal assent; the judgments handed down in the royal courts of justice; the discretionary powers of the prime minister acting on behalf of the crown.

Trace any legal power back far enough, and you will usually end up with the Crown.

(With a few exceptions.)

Indeed, the Crown can confer legal effect on all sorts of written instruments, of which Acts of Parliament are merely one example amongst others: royal charters, orders in council, royal warrants, royal proclamations, letters patent, and so on.

Once they are endorsed by the crown they, by constitutional magic, have legal effect.

It is a convention of the common law courts that Acts of Parliament have priority above the other royal instruments (a mere rule of statutory construction, as someone once mischievously put it.). But from another point of view, all are instruments that have legal effect once they are endorsed by the monarch.

Like a prime minister, an Act of Parliament is first amongst equals.

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When the question arose about how to remove the ducal title from an individual previously known as a prince, many assumed that it could only be done by Act of Parliament.

Here there seemed to be a precedent: the Titles Deprivation Act of 1917 – the text of which is here – which was used to remove titles from aristocrats on the side of Germany in the first world war.

Presumably, the thought went, such a statute would be required again.

No.

If one looks carefully at the 1917 Act you will see that it recognises but does not create a right of the-then king to remove an honour. It instead provides a scheme for selecting which peers would lose their titles, and for dealing with consequential points like succession and property.

The 1917 Act was one way of putting the question before the king and for addressing any aftermath, but it was not the only one. It was not an exclusive method.

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And so what happened last week was that the current king used another legal instrument – a royal warrant – to remove the title from his brother.

The warrant instructed the Lord Chancellor – responsible for maintaining the roll of peerage – to remove the title.

As simple as that.

One reason is was so easy was because of the constitutional changes of 1999-2005 which affected the composition of the House of Lords and the changed the nature of the Lord Chancellorship – see here.

Because a peerage no longer carries an automatic right to sit in the legislature, there is really little legal traction to a title, and so less impediment to it being removed by means other than an Act of Parliament.

A royal warrant was thereby a deft workaround, instead of a statutory scheme such as the 1917 Act.

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Never underestimate the residual force of royal power in the United Kingdom (though Scots law is not necessarily the same on this as the laws of England and Wales and Northern Ireland).

The king can still do all sorts of things which have legal effect and without any Act of Parliament.

And many of these powers can be used “on behalf of the Crown” by ministers.

The problem with all this is that those royal powers are not directly checked and balanced by parliament.

And so whilst we may clap and cheer and the king’s clever constitutional move here, it would generally be preferable for such things to be dealt with by parliament, and not the crown.

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The president who believes himself a king

23rd February 2025

A telling joke told by the president of the United States

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During the last week the president of the United States compared himself to a king.

Of course, it was intended to be a joke – not in the sense of being funny, but in the sense of saying something without any adverse consequences.

But what struck me when he said it is that this is exactly sees power: that all power – executive, legislative, judicial – flows from him, and is ultimately exercisable by him. He wants to block laws and ignore court orders at will.

As such he does see himself as an absolute ruler.

In the United Kingdom – or at least in England – the theory is that while all power flows from the Crown, it is institutionalised so that the legislature legislates (as the “Crown-in-Parliament”) and the courts adjudicate (including in the Royal Courts of Justice).

But.

The “founding fathers” who devised the United States constitution rejected this approach – for them, the executive, legislature, judiciary each derived their powers separately from the constitution document itself – and not from the executive.

Trump’s approach is a flat contradiction to this codified constitutional arrangement.

I have written more about this over at Prospect – please click and read here.

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Looking critically at Trump’s flurry of Executive Orders: why we should watch what is done, and not to be distracted by what is said

21st January 2025

Around Westminster, the most useful guides to the nature of modern politics may not be the journalists and commentators, still less the ‘think tanks’ with their portentous names and solemn but flimsy ‘reports’.

They are perhaps instead the con-artist conjurers on Westminster Bridge – whose activities are detailed in this fine piece.

For it is these lowly tricksters that remind us that we should watch what is done, and not to be distracted by anything else.

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The Conjurer, painted by Hieronymus Bosch

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In the United States and the United Kingdom there is currently a lot of noise and a lot of misdirection.

As a famous chess player once observed:

“The point of modern propaganda isn’t only to misinform or push an agenda. It is to exhaust your critical thinking, to annihilate truth.”

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The constant noise and endless misdirections are indeed exhausting.

By the time any of the noise and misdirections are translated into action (or inaction), you are tired to notice and others will be too tired to care.

We will be onto the next outrage, and then the next, and the next.

The hard thing is to separate out what is done (and not done) from what is said.

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In the United States there has been a flurry of Executive Orders from the newly inaugurated President Donald Trump.

This sounds very impressive, and it sounds very scary.

But, an Executive Order is not a precise thing – it is a generic term to describe a range of documents that can come from the President.

As this US academic explains:

Some of these Executive Orders will be instruments provided for and envisaged by pre-exisiting enacted legislation: and these will usually have direct legal effect.

Others will have no legal framework and have no legal basis for having any effect.

Many will range between these two extremes.

All will be ‘Executive Orders’ put forward and signed by the President – but pretty much that is all they will have in common.

And according to another US observer, many of these Executive orders are not even of serviceable quality:

This is not surprising: competent legal drafting is not easy, and many of these “Executive Orders” are from pressure groups and professional antagonisers.

Like the Truss legal letter recently examined on this blog, what you have here are media-political devices disguised in the form of legal documents.

But it is a mask, and what we are seeing is essentially a masquerade.

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This is not to say that some – maybe many – of these Executive Orders are not going to have adverse effects for somebody – especially in the short term.

Indeed, given the many partisan conservative judges now on the federal bench, there will be energetic judicial exertions to give effect to otherwise shoddy Executive Orders.

But what it does mean is that we should be careful not to accept everything at face value.

For a flurry of Executive Orders may be little different from a flurry of Press Releases.

And we should be mindful that we are dealing with con-artist conjurers.

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This week’s skirmish between the European Commission and X

17th August 2024
Law and politics are ultimately about how power is allocated and exercised within a given complex society. In particular, law and politics are about how such power is legitimised and about how it is checked and balanced.

And from time to time you will have visible contests between those with different types of power. The job of law and politics is then to regulate such contests so as to ensure that tensions do not harden into the contradictions that undermine the health of a polity.

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These contests of power, when they happen, are fascinating.

Over at Prospect I have written a post about one such contest: the European Commission v X.

The latter has considerable media power: so much so that the content of its platform can often have a considerable real-world impact.

But the former also has considerable power – in the formulation of the laws that apply to the platform in the European Union and in the application of those laws in particular circumstances.

It is quite the stand-off.

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When the European Commissioner responsible for the Single Market tweeted a letter last week, it reminded me of an earlier stand-off.

It evoked the stand-off in 1930-31 between the then government of the United Kingdom and the then popular press over tariff reform and imperial preference (the Brexit issue of its day).

That was a stand-off which, at least in the short-term, the government won.

(Tariffs were introduced later in the 1930s, though not directly because of media pressure.)

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Often these tensions are hidden and managed out of public view, and so it is always interesting – and instructive – when they are done in public.

Something is up.

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The predicted governing party implosion in historical and constitutional context

11th June 2024

From time to time the party now known as the Conservative and Unionist party has done badly – very badly.

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In 1828-32, the old Tory collapsed as what some historians call the British “ancien regime” itself collapsed with Roman Catholic emancipation and the Reform Act of 1832.

Relatively moderate Tories, “Canningites” like Melbourne and Palmerston, went off to join with the Whigs.

But the Tories were back in government by 1834, and rebranded as by Peel as “Conservatives” they had an overall majority by 1841.

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In 1845-46, the Conservatives collapsed as the Corn Laws were repealed (the “Brexit” of its day.

Relatively moderate Conservatives, “Peelites” like Gladstone, went off to ally themselves with the Whigs.

But the Conservatives were back in government by 1852, and after reinvention by Disraeli they had an overall majority by 1874.

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In 1905-06, the Conservatives – now allied with the Liberal Unionists – collapsed, in good part because of splits on tariff reform and imperial preference (the “Brexit” of its day).

Relatively moderate Conservatives, “Free Traders” such as the young Winston Churchill, went off to join the Liberals.

But the Conservatives (who formally fused in 1912 with the Liberal Unionists to create the current Conservative and Unionist party) were back in government by 1916, and (posing as a national coalition) they had an overall majority by 1918.

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And in 1997, the Conservatives lost badly, in good part to splits on the European issue following Maastricht and Black Wednesday (the “Brexit” of its day.

There were a number of defections of (now forgotten) Conservative politicians to the Labour and Liberal Democrat parties.

But the Conservatives were back in office by 2010, and they had an overall majority by 2015.

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The four examples above have common themes – including the facts that the Tory-Unionist-Conservatives-National Coalition managed to get back into office again, before winning an overall majority at a later election.

There is also the example of 1945, where a heavy Conservative defeat was followed by taking office again by 1951.

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But there is one theme which is different, and which may make what happens after the imminent general election in 2024 different.

After each of the defeats referred to above, the defeated rump of the party pretty much remained. It did not go off to create a new party to their right.

And so as the pendulum of politics in time moved away from those who had defeated that rump, they were able to take advantage.

Of course, they also often took the time and effort to rebrand or reinvent themselves. And they were able to take advantage of working with others, such as the Liberal Unionists after 1886 and the other parties in national coalitions from 1918 to 1935.

But they never had to deal with a party trying to take their place as the main party opposing the more left-wing party.

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Here an analogy may be with the Liberals, who last won an overall majority in 1906 – and were then after 1906 outpaced by the rising Labour party.

All because the Tory-Unionist-Conservatives have come back each time before, it does not mean that they necessarily will do again.

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The “first past the post” electoral system tends to favour established parties with their established brand names – and tribal loyalty and voters’ muscle memory will tend to do the rest.

As such, the Conservatives have an advantage over the Reform party now trying to outpace it to the right.

It may well be that the Reform party do no better than flash-in-the-pan(ic) parties like the “New Party” of 1931-32 and the SDP of 1981-88.

But when the electoral system finally shifts against a party, it shifts – as the Liberals found out after 1906.

And until and unless there is fundamental electoral reform, the Conservatives not only face heavy defeat (which they have survived many times before) but also a spirited attempt by Reform to be their replacement.

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So, if as widely predicted there is a heavy defeat for the Conservatives on 4 July 2024, will they soon bounce back as they (and their previous incarnations) did after 1832, 1846, 1906, 1945 and 1997?

Or will this be their equivalent to what happened to the Liberals in 1906?

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Why the Northern Irish Border Poll of 1973 was both unimportant and profoundly important

19th July 2023

A modest proposal for helping the Prime Minister “keep on top of government” and “to push priorities”

3rd July 2023

Over on Twitter, the estimable Dr Cath Haddon is live-tweeting a talk from a former cabinet minister to the Institute of Government:

Here is an idea for a Prime Minister to have something to help him or her keep on top of what is going on in government and to push priorities.

The Prime Minister should form a committee of, say, about twenty-two individuals, each responsible for a specific government department or public function.

Those on this committee should report directly to the Prime Minister.

And the Prime Minister should be able to appoint and replace members of this committee as he or she chooses.

This committee should meet at least a couple of times a week – and this meeting should be at Downing Street chaired by the Prime Minister.

There can also be sub-committees dealing with matters where more than one government department is concerned – and these sub-committees can also be chaired by the Prime Minister or their designate.

So as to ensure that priorities are pushed – and as politics should be the language of priorities as one politician once said – these appointees should be politicians not officials.

And appointing members of parliament to this committee would also mean that the Prime Minister would have a useful direct line to what is said about the departments in parliament.

Meetings of this committee should also be attended by the head of the civil service, so that he or she can be part of the discussions and to provide advice and practical insight.

The deliberations should be confidential so that discussions can be frank and not leaked.

And there should be collective responsibility for those on the committee, so that there is a single overall direction to the course of the government.

Those on this committee should also be paid a substantial amount in addition to their parliamentary salary so as to recognise the additional work and to attract the brightest and best.

Such a model would, at a stroke, keep a Prime Minister on top of what is going on in government and for priorities to be pushed across government.

And this is the important thing…

…if a Prime Minister cannot effectively use such a committee to keep on top of what is going on in government and to push priorities, then no “Prime Minister’s Department” is going to be of any greater help.

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The only thing left is what to call this committee.

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Pic source.

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Why the United Kingdom government cannot leave the ECHR without either breaching or re-negotiating the Good Friday Agreement

1st July 2023

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The overlooked obstacle to the United Kingdom withdrawing from the ECHR

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From time to time the demand comes from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.

This short blogpost sets out the most obvious obstacle for the government in doing this.

The obstacle – if that is the correct word – is the Good Friday Agreement.

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That thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.

[…]

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including:  […]

“(b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission

[…]

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

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The ECHR is not just mentioned in passing in a recital.

Instead the ECHR is integral to the Good Friday Agreement.

Rights under the ECHR that can be relied upon in Northern Ireland are a fundamental part of the agreement.

It was important to Ireland – and to the nationalist community – that there were rights beyond the reach of Westminster and Whitehall (and Stormont) that could be enforced directly against the state of the United Kingdom, including against the police and security services.

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When this obstacle is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”

Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.

But.

Article 1 of the ECHR provides:

It may thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.

This would be in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.

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Perhaps the government of the United Kingdom could seek to renegotiate the Good Friday Agreement?

This would mean Ireland agreeing that those – especially nationalists – in Northern Ireland should have their existing legal rights against the United Kingdom state removed.

It would also mean Ireland agreeing that it would not be able to take the United Kingdom to court in Strasbourg.

And it would also mean – in practice – the United States and the nationalist community agreeing that legal rights and protections are removed.

This is not at all realistic.

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And the difficulty cannot be resolved by simply copying and pasting the Convention rights into a domestic statute for Northern Ireland.

For unless the rights are as constructed and interpreted by the Strasbourg court, and unless a disappointed party can petition the Strasbourg court directly, they are not “convention rights” – even if identically worded.

(This is partly why even Dominic Raab’s “Bill of Rights” that was to repeal the Human Rights Act had the convention rights in a schedule and a duty on public authorities to comply with those rights.)

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Part of the difficulty of Brexit was because some did not know or did not care about the particular situation of Northern Ireland. Some also pretended it was not an issue, but as we now know it needed special care and attention – and it still has not been fully resolved.

Similarly those who believe just leaving the ECHR would be easy may again be overlooking the Irish and Northern Irish dimensions.

And unless the Good Friday Agreement is re-negotiated, the United Kingdom leaving the ECHR would place the United Kingdom in breach in Good Friday Agreement.

Well, at least as long as Northern Ireland remains part of the United Kingdom.

And that would be another story.

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This post is partly drawn from this earlier blogpost.

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