A constitutional requirement to resign?

Andrew Blick
By: Andrew Blick

Is there a constitutional requirement for Boris Johnson to resign as Prime Minister? As is often the case with such questions, arriving at an answer is a complex task. The basic principles involved are set out in the Ministerial Code. Paragraph 1.3 c states:

‘It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister’.

This rule is a fundamental feature of the UK constitution. It exists independently of the Code, which in fact reproduces the text of a motion passed by both Houses of Parliament in 1997. It is more than simply an executive-owned requirement. Nonetheless it is significant that it is included in a document (the roots of which stretch back over more than a century) issued under the authority of the Prime Minister. In the foreword to the current, August 2019, edition of the Code, Johnson refers to the need to ‘uphold the very highest standards of propriety’, going on to remark that ‘this code sets out how we must do so.’ The Prime Minister emphasises further in the foreword that:

‘The precious principles of public life enshrined in this document – integrity, objectivity, accountability, transparency, honesty and leadership in the public interest – must be honoured at all times’.

The Prime Minister, therefore, cannot plausibly distance himself from the Code and the rules to which it refers. But what does the paragraph 1.3 c stipulation mean in the context of the fixed penalty notice he has received and paid (with perhaps more to follow)? Two comments on the specific wording of the paragraph are useful at this stage. First, since it refers to transgressing ministers needing to offer their resignation to the Prime Minister, it could be read as applying to ministers other than the Prime Minister, but not the Prime Minister. However, in January this year, the Leader of the Opposition obtained clarification on this point. He put it to Johnson in the Commons that: ‘[t]he ministerial code says that: “Ministers who knowingly mislead Parliament will be expected to offer their resignation”. Does the Prime Minister believe that applies to him?’ Johnson replied ‘Of course’. On this basis Johnson seemed to accept that a Prime Minister – who cannot offer a resignation to themselves – would, if they had knowingly misled Parliament, simply be expected to resign (presumably involving, as a formality, offering their resignation to the monarch).

Second, paragraph 1.3 c does not make lying the threshold, referring to what might be regarded as a more easily broken requirement to refrain from the act of knowingly misleading Parliament. When conveying information to Parliament, simply crafting a statement in a way that avoids outright falsehood is not sufficient. Which takes us to the various statements Johnson has made to the House of Commons about matters relevant to the fixed penalty notice he has now received. (It seems generally to be accepted that knowingly misleading Parliament can only involve statements made specifically to Parliament, and not outside it, so for present purposes we can confine ourselves to such content). Let us take one assertion, made on 8 December last year, in the wake of the leaked video that led to the resignation of Allegra Stratton. Johnson told the Commons on this day:

‘I have been repeatedly assured since these allegations emerged that there was no party and that no covid rules were broken. That is what I have been repeatedly assured.’

It may or may not be the case that Johnson was given such advice; and at this point the focus was principally on one alleged party. But it is reasonable to conclude that, through this account, the Prime Minister seems to have sought to convey the impression that he had no relevant first-hand knowledge of his own, was not directly involved in any related incidents, and reliant purely on information provided by others after the fact. In the statement issued following his fixed penalty notice on 12 April this year, he provided a detailed description of events of 19 June 2020, the day on which he broke the law (with perhaps others to be revealed subsequently). In this account he explained why he thought, at the time, that a gathering in the Cabinet Room to celebrate his birthday did not break the rules.

One might or might not choose to accept that Johnson genuinely held this view before the police found it to be incorrect. But it is difficult to reconcile his present stance with the way in which he appeared to lead Parliament to believe that he was not involved in any pertinent incident, and could only ask others to provide him with information. Surely, in December 2021 when the issue came before Parliament, he should have conveyed to the Commons that while incidents such as his birthday celebration (of which he has demonstrated he has a clear recollection) had taken place, in his opinion they were within the law. He did not. Some might reasonably conclude that the 8 December statement is one example of Johnson having knowingly misled Parliament, and that he is therefore subject to a constitutional requirement to resign. But who is to make the final decision on this matter? Paragraph 1.6 of the Ministerial Code tells us that:

‘Ministers only remain in office for so long as they retain the confidence of the Prime Minister. He is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards.’

In this sense, prime ministers regulate themselves – a problematic proposition. Yet, as noted above, the prohibition on the misleading of Parliament is more than simply a matter for the executive: it is about how it is held to account by Parliament on behalf of the public, and therefore of considerable constitutional significance. Prime ministers who fail to resign when they should can be in effect forcibly removed. There are a variety of means by which this outcome can potentially be achieved: a revolt within Cabinet (probably involving threatened or actual resignations); by the House of Commons; or by their parliamentary party. Those within these institutions who judge the Prime Minister to have violated such an important principle have a constitutional duty to seek to utilise the sanction they collectively possess. Failure to do so makes them complicit in the conduct of the Prime Minister.

Andrew Blick is Professor of Politics and Contemporary History and Head of the Department of Political Economy at King’s College London and Senior Adviser to The Constitution Society.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.