Britain needs to formalise the role of an Acting PM

To talk of death lightly in current circumstances might well seem not only morbid but tasteless. In the midst of a pandemic – one hitting Britain almost as hard as anywhere – leaving many thousands of people bereaved, we obviously need to be sensitive to those considerations.

And yet in terms of government, deaths among its own members are in truth a lot easier to handle than serious illness. There are processes defined, reappointments to be made and relatively simply defined timelines to follow; there is greater clarity and (as far as there can be), certainty.

Two examples here. The constitution of the United Kingdom, unwritten thought this part may be, is clear on what should happen on the death of a prime minister in office: the Queen should make a new appointment, choosing the person most able to command the confidence of the Commons. The practicalities of that process are a little murkier but presumably Palace officials would seek the views of cabinet ministers (ideally, collectively), and of the relevant party’s other senior representatives – the Tories’ 1922 Committee or Labour’s NEC, for example. She could then appoint someone either on a permanent basis, if there were unanimity on the choice, or on an interim basis until the party made a choice through its internal election. There is no equivalent clarity on what should happen if a PM falls seriously ill.

Secondly, to put some flesh on that process, Robert Armstrong – Cabinet Secretary from 1979-87 – recalled his reaction to hearing the initial news of the 1984 Brighton bomb in an interview with Peter Henessy, not knowing whether Margaret Thatcher was alive or dead. It’s notable that while he recalls thinking through what he’d have to do had she been killed, he doesn’t appear to have given any thought as to his duties were she to be confined to hospital for months, or were she left not only incapable of doing the job but of being able to tender a resignation.

The current hospitalisation of the prime minister once again raises that question. As it happens, fortunately, it looks as if it’s one that need only be asked hypothetically: the PM is reported to be recovering and presumably can in due course return to his full duties (though that point raises another question we’ll come on to later). But such an outcome was not always certain, nor will it always be.

Similarly, while government can continue in the absence of the PM, particularly if, as now, it has a clear purpose to work towards (and the political tools with which to do so), or if it is in a period where the general administration of the state takes primacy, these conditions cannot be assumed. Suppose the PM had fallen seriously ill during 2019 rather than 2020, with Brexit dividing politics rather than the fight against Covid-19 uniting it; and with major, time-constrained, decisions to be taken. Could they have been?

It’s usual at this stage to point to history and all the times past when there have been ill prime ministers and the country has come through: Churchill both during the war and in his 1951-55 term (the latter instance also coinciding with the Tory heir apparent, Anthony Eden, also falling seriously ill), for example. And it’s true that the flexibility of the constitution, combined with the fact that the PM’s powers are primarily political rather than legal – crucially, his or her ability to appoint and dismiss, and to take the lead in Executive matters like foreign policy; ministers themselves exercise most statutory powers directly – means that it’s perfectly possible for the wheels to keep turning in the absence of a central individual, assuming the political forces are centripetal rather than centrifugal.

Even so, while winging it based on best endeavours, mutual co-operation, cabinet government and individual ministerial authority might work, it’s hardly ideal. As has been pointed out during Johnson’s illness, Dominic Raab is not Acting Prime Minister; he is acting for the Prime Minister. That’s an important difference. It is not his government and he’s only co-ordinating events using pre-existing authority – and that authority does not stretch to the powers of patronage and all the political power from which that stems.

Does that matter? Well, yes. As it happens, it didn’t this time but it could well have. Not only was Johnson infected with Covid-19 but the Health Secretary was too, and Chris Whitty – the Chief Medical Officer – also went into self-isolation having displayed symptoms of the disease. As it turned out, both cases (if it even was a case for Whitty) turned out to be mild but suppose they’d also been hospitalised or worse: new appointments would have had to have been made. By whom? And on what authority?

Again, there is flexibility available. While legislation often states specific powers and responsibilities of the ‘Secretary of State’, it doesn’t say which Secretary of State. In law, they are each entitled to act to fulfil any of the legal functions of any of them. One or more of the others could therefore fill in for one who was indisposed, absent or unavailable for whatever other reason. In practice, would that really be acceptable in the middle of a major national (and international) crisis? Almost certainly not.

At this point, we need to remember that the parliamentary system of government is by its nature distinct from a presidential one with lines of succession. In the latter, office held directly by virtue of election or, as here, inheritance via legally defined processes after such an election; in a parliamentary one, office is held only with the consent and confidence of the legislature. So while a presidency can be fully inherited, a parliamentary government cannot be similarly defined in law as any such change must by definition be subject to – in the UK’s case – the Commons’ say-so. Again, that might not matter in current circumstances, it might very well have done in similar ones last year, with the maths of that parliament and the live issue of Brexit.

The absence of an active PM creates a vacuum at the centre, and politics – as nature – abhors such a vacuum and will seek to fill it. The scenario of itself has enough uncertainties without adding to them with potential constitutional confusion. As such, it would be much better if the UK had a formal provision similar to the 25th Amendment of the US constitution which enabled a temporary handing over of power to a named individual for the duration of a PM’s unavailability, and allowed them to exercise the full authority of the office. There’s no need (nor space) to get into the precise mechanics here; suffice to say that there’d need to be checks that both cabinet and parliament were content with the arrangement, and provision to alter it if not. Likewise, there’d need to be scope for a PM to object to, say, the cabinet mounting a mini-coup through the provisions of the Act, when the appropriate constitutional routes to pursue severe disagreements would be resignations and votes of No Confidence. But such safeguards could be built. Unfounded fear of abuse is no reason to not put the process in place.

There is a secondary need for proper arrangements for Acting PMs, which by a nice symmetry is the opposite of the first: namely two (rather than no) centres of power.

With Boris Johnson on the mend, attention inevitably turns to when he will be back in the driving seat. His health advisors might well want him to spend weeks recovering and, for his health, that might be best. However, he – and no-one else – is prime minister. Once he again becomes available, he inevitably gains both power and responsibility because whatever ministers (including Raab) decide, he has the capacity to over-rule, or at least to act as a court of political appeal. Only if he is formally stripped of that power until he is in a position to fully return, can those acting in his absence properly do so. (In truth, even if formally stripped of his powers, a convalescing PM would still retain soft power if people believed he’d be shortly returning to office. Still, something is better than nothing).

It’s rare for a PM to be critically ill in office; still more so for it to be at a time of national crisis. Even so, it’s a position neither national nor party constitutions really cater for. Both assume that a PM or leader will be fit in office or, if not, will be in a position to resign if the need is there to. That is not an entirely safe assumption. There are loopholes: the No Confidence mechanisms could be used to replace a leader or PM not able to resign but neither expected to recover, but this isn’t ideal. Better then to take the hint from the near-miss of Johnson’s illness and close the constitutional gap.

David Herdson