Uncertainty about the position of the Prime Minister has raised the question whether Andy Burnham, currently the Mayor of Greater Manchester, might return to the House of Commons in order to challenge for the leadership of the Labour Party. Some commentators have even suggested that Burnham could, on an interim basis, become Prime Minister before winning a by-election and becoming an MP. This post explains why that view is incorrect.
As Keir Starmer’s leadership of the Labour Party – and hence his grip on power as Prime Minister – has increasingly been questioned over the last week, attention has inevitably turned to who might succeed him. One of the names most frequently mentioned is that of Andy Burnham. However, he is currently the Mayor of Greater Manchester and not an MP. Attention has therefore focussed on whether he might resign from his current role and fight a by-election triggered by a sympathetic Labour MP standing down in order to pave the way for Burnham’s return to Westminster. All of that, however, would take time, and it is currently unclear whether any Labour Party leadership process would move slowly enough to enable Burnham to join the race.
Against that background, some commentators and politicians have argued that Burnham’s not currently being an MP is not an obstacle. For example, Tom Newton Dunn of The Times has said:
There is a route for Andy Burnham to become PM without winning a Commons by-election first: he could be made a Lord. Constitutionally the PM just needs to be a member of one of the two houses of Parliament.
The implication is that Burnham, if somehow parachuted into the House of Lords, could serve as Prime Minister from there. Others have gone even further. Shadow Chancellor of the Duchy of Lancaster Alex Burghart argues that “[t]he Prime Minister doesn’t need to be an MP or a peer”. Both of these views, however, are misconceived. While there may be no legal requirement for the Prime Minister to be a member of the House of Commons, there is today a clear constitutional requirement to that effect. That requirement takes the form of a convention – that is, a well-established practice – as distinct from a law, but it is no less important for that.
The convention is set out clearly in the Cabinet Manual, both explicitly and implicitly. In explicit terms, paragraph 3.1 of the Manual says:
The Prime Minister is the head of the Government and holds that position by virtue of his or her ability to command the confidence of the House of Commons, which in turn commands the confidence of the electorate, as expressed through a general election. The Prime Minister’s unique position of authority also comes from support in the House of Commons. By modern convention, the Prime Minister always sits in the House of Commons. The Prime Minister will normally be the accepted leader of a political party that commands the majority of the House of Commons.
The foregoing aligns with what is said elsewhere in the Manual on the formation of governments and the appointment of Prime Ministers. Paragraphs 2.7 and 2.8 provide as follows:
The ability of a government to command the confidence of the elected House of Commons is central to its authority to govern … Prime Ministers hold office unless and until they resign. If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government.
The convention that the Prime Minister must be an MP, clearly acknowledged in the Cabinet Manual – an authoritative, if not decisive, source in this regard – is not merely important; it is one of the cardinal conventions of the British constitution. We normally expect such conventions to satisfy three requirements: that there is a clear pattern of consistent practice; that those to whom the convention is addressed consider themselves to be bound by it; and that there is a good constitutional reason for the practice to be followed. Each of those criteria is amply fulfilled in this case. First, it is over 60 years since a Prime Minister served from outside the House of Commons. That was when Alec Douglas-Home, a member of the House of Lords, took over as Prime Minister following the sudden resignation, through ill-health, of Harold Macmillan. But Douglas-Home renounced his peerage and, within three weeks, fought and won a by-election to secure a place in the Commons. That episode goes to the second criterion too, demonstrating that it was recognised on all sides that Douglas-Home could not serve as Prime Minister without becoming an MP almost immediately. As to the third criterion, the Cabinet Manual makes clear the constitutional reason for the practice: namely, that the British constitutional system hinges upon the capacity of the Prime Minister to command the confidence of the House of Commons. Indeed, it is their capacity to do so that makes them Prime Minister, the monarch’s constitutional duty (itself grounded in convention, not law) being to invite the person best placed to command the Commons’ confidence to become Prime Minster. This, in turn, fashions the crucial democratic link that runs from ballot box to government via a system of elections that is directly concerned with the composition of the legislature but which indirectly, via convention, determines the identity of the Prime Minister and the political complexion of the government.
Unsurprisingly, the Labour Party’s own rulebook aligns with this, stating that “[a]ll nominees [for leader and deputy leader] must be Commons members of the PLP [Parliamentary Labour Party]”. This is subject to the possibility of the procedures laid down in the rulebook being “varied by the consent of the NEC [National Executive Committee]”, but it would be perverse for the NEC to permit someone to run for the leadership of the party if, constitutionally, they could not serve as Prime Minister because they were not a member of the House of Commons. If, hypothetically, such a situation were to arise – if, for instance, Andy Burnham were to be elected Labour leader without, or before, becoming an MP – the King would be placed in a difficult position. Who, in those circumstances, would (in the words of the Cabinet Manual) be the person “most likely to be able to command the confidence of the House”? That would depend on the circumstances, but it would manifestly not be the leader of the party if he (or she) were not to be an MP. In that scenario, the King might well be best advised to appoint the deputy leader of the party as Prime Minister. But it is surely unthinkable that the King would be put in such a position in the first place, given that the Labour Party’s own rules, like the constitutional position itself, are so clear. More than 60 years after Alex Douglas-Home renounced his peerage to enable him to serve as Prime Minister, there can be no doubt that the King would not – and should not – appoint anyone as Prime Minister who was not an MP. If, therefore, Mr Burnham aspires to that office, he will need to fight and win a by-election – and hope that the Labour Party is willing to delay any leadership election process in order to give him time to do those things.