Boris Johnson thinks he has the right to decide when he leaves office – but does he?

It's difficult to argue with Sir John Major’s judgement that Boris Johnson’s plan to remain prime minister until the autumn is unsustainable.

Contrary to Johnson’s claim over recent days, he does not owe his position as PM to a “mandate” from the 14 million people who voted Tory in 2019. Those votes were for individual MPs, part of whose job as representatives of their constituents in parliament is to choose a prime minister.

And he is not prime minister merely by virtue of being leader of the largest party in parliament.

Instead, he is invited by the Queen to head her government on the basis that he is the person best able to command the confidence of the House of Commons.

With dozens of his MPs and senior figures in his own party openly expressing horror at the idea of him remaining in post for another few months, it is far from clear that this is the case. But if he chooses not to move on, it’s also unclear exactly how he could be removed.

It’s not unusual for departing PMs to stay on to oversee the business of government while a successor is chosen – Margaret Thatcher remained in post for a week, David Cameron and Theresa May for rather longer to prevent the constitutional impossibility of a gap between prime ministers.

But in the cases of Cameron and May, their resignations were down to policy differences with their parties, not because their MPs judged them to lack the integrity needed to lead the country. And in neither case were there fears that they might use their last weeks in office to make irrevocable and potentially damaging changes.

Johnson’s former aide Dominic Cummings predicts “carnage” if he is allowed to stay in No 10 for the seven or eight weeks needed to elect a new Tory leader. And it is unarguably the case that he would have the scope for mischief on a grand scale if he chose. The UK constitution does not recognise the notion of a “caretaker” PM and he would retain all the powers of his office until he handed over the reins to a successor.

It would be entirely open to him to commit British troops to military action, to hand out contracts and honours to allies or to make costly policy decisions – a massive unfunded tax cut perhaps – in the hope of securing a positive legacy. If things went well and the Tories closed on Labour in the polls, and if the leadership contest was producing no obvious standout contender, it’s not beyond imagination that he might start suggesting it would be better all round for him to stay on.

It is notable that, in his resignation speech, Johnson mentioned that he had agreed with the chair of the backbench Tory 1922 Committee, Sir Graham Brady, that there should be a leadership contest and immediately went on to say that he would serve as PM until it concluded. Although it might have sounded as if his continuation in office had been agreed, this was not explicitly stated – probably for the very good reason that Sir Graham is in no position to agree such a thing.

Instead, it is entirely possible that the new executive of the ’22 – due to be elected on Monday – will decide that Mr Johnson’s claim to continue as leader of the party should be tested in a fresh confidence vote. They might be forced into calling one if sufficient letters come in from Tory MPs.

There seems little doubt that he would lose that vote by a landslide. It’s also possible that he might lose a vote of no confidence called by Labour in the House of Commons, though many Tory MPs might be unwilling to go along with the defenestration of their leader by the opposition. But either of those outcomes in themselves would not be enough to remove him as prime minister if he refused to stand down.

The ’22 could seek to speed the removal of Mr Johnson from Downing Street by truncating the process of choosing his successor. But with a wide field likely and no clear frontrunner, they would be wary of rushing a contest that is designed to test the mettle of would-be leaders and weed out those who are unfit for the job.

In which case, the famous flexibility of the UK’s unwritten constitution would be tested to its limits.

The normal form in a handover of power from one PM to the next is for the incumbent to visit the Queen in Buckingham Palace to tender his or her resignation, and the successor to arrive moments later to be asked to form a government in a ceremony known as “kissing hands”.

If Johnson refused to resign, those seeking his removal would have to persuade the Queen and her advisers that he could not command MPs’ confidence, but an alternative was available who could.

The cabinet manual makes clear that, in situations of doubt, the monarch must not be dragged into party politics, but that “it is the responsibility of those involved in the political process, and in particular the parties represented in parliament, to seek to determine and communicate clearly to the sovereign who is best placed to be able to command the confidence of the House of Commons”.

The most likely way for this to be done would be for a delegation of senior Tories to advise the palace that deputy prime minister Dominic Raab was the preferred choice of the Commons to serve as caretaker pending the election of a new Conservative leader. But if Raab wants to stand in the leadership election, or if it becomes clear that he is unacceptable to a significant number of Tory MPs, an alternative might need to be found.

This would have to be someone senior, with the experience needed to take decisions and represent the UK at the highest level, but with the ability to assure MPs they would act responsibly during their brief stint in power and without personal ambitions to remain permanently in the post.

Looking through the ranks of MPs on the Conservative benches, few stand out as fitting that bill. If he has given up his former hopes of being elected Tory leader, then perhaps Michael Gove would be a contender. If not him, then thoughts might turn to May, with the remarkable prospect that she could briefly replace the man who masterminded her own ejection from No 10 just three years ago.

Civil service papers dating back to 1949 state that, in complicated political situations, the monarch has the “absolute right” to consult anyone he or she pleases before asking a potential PM to form a government. She would rely heavily on her private secretary, but could also speak to former PMs, cabinet ministers, senior parliamentarians, the leader of the opposition and constitutional experts before deciding on her course of action.

What seems certain, though, is that no matter how determined Johnson might be to remain in Downing Street for a few months – overhauling May in terms of length of service as he does so – he will not be able to stay in the face of opposition from his own party.

Yours,

Andrew Woodcock

Political editor