Much has been said about the fact that Theresa May has become prime minister, after the resignation of David Cameron, in effect chosen by the members of the parliamentary Conservative party alone, without a mandate directly from the people. She lacks, it is alleged, a democratic mandate. She should call a general election.
Ironically, she attacked Gordon Brown on those very grounds when he took office in 2007. The claim was the Brown then, and thus May now, lacked democratic legitimacy, had no mandate to govern. She wrote on Conservative Home:
‘Whenever Gordon Brown chooses to call a general election, we will be ready for him. He has no democratic mandate.’
May was, of course, playing the political game back in 2007. There is a strong argument for saying she was wrong then, and that those demanding that she call just such an election to give her just such a mandate are wrong now; that the demand for an election is founded upon a misunderstanding of our constitution, practice and, no less importantly, our modern history.
Let’s begin with history, in many ways the closest thing we have to a constitution. Since 1900, there have been 22 prime ministers: of those only seven first took office in the direct aftermath of a general election. 13 of those prime ministers were Conservative: of those, only Heath, Thatcher and Cameron took office for the first time after winning a general election.
Of those who first took office without a general election, five went to the country within a year of doing so. However, we might argue that only in one case was there an election on what we might think of as plainly political grounds: that is, to seek a fresh mandate. Even then, how far Anthony Eden felt it was necessary to seek a fresh mandate because he had become prime minister, rather than taking advantage of favourable circumstances to extend his majority. is open to argument.
Two of the five who went to the country went immediately. Henry Campbell-Bannerman, in 1905, and Andrew Bonar Law, in 1922, took office upon the collapse of previous governments, with the sole purpose of calling general elections (which they both won handsomely). We might, fairly, add them to the list of those who effectively became PM for the first time on the back of election victories: MacDonald in 1924, Attlee in 1945, Wilson in 1964, Heath in 1970, Thatcher in 1979, Blair in 1997 and Cameron in 2010. We might also mention that Churchill returned to office in 1951 after winning a general election, as had MacDonald in 1931 and as would Wilson in 1974.
That leaves us with just three who went to the country upon inheriting a stable majority when first taking office. In October 1922, Bonar Law won a comfortable majority of 72. Unfortunately, the throat cancer that would soon kill him saw him resign in May 1923. His successor, Stanley Baldwin, inherited that comfortable and stable majority. To most people’s surprise, nay shock, he called a snap general election at the end of 1923.
Baldwin’s underlying reasons for calling that election remain unclear to this day. What is important for these purposes is that they did include the idea of a personal mandate. The stated reason was the long hoped for tariff reform (something akin to Brexit in the passions it aroused among many Conservatives in the early 20th century). In 1922, seeking to defuse the issue and fearing the electoral damage it would do his party in that election, Bonar Law had promised that the government would not introduce tariff reform without a fresh mandate. So, to get that mandate, Baldwin went to the country.
The Conservatives emerged the largest party, but could not command a majority in the Commons: a minority Labour government took office.
In 1955, Anthony Eden took office upon Churchill’s retirement, and went immediately to the country and extended his party’s majority. As noted above, the extent to which he saw that as a consequence for a personal mandate is unclear, though he was very popular and the campaign made much of that fact. Just as importantly, though, he inherited a very small majority, was well ahead in the polls, and was head of a government with less than 18 months of its maximum five-year lifespan left: the temptation to go then owed at least as much to simple electoral calculation and the electoral cycle.
When Alec Douglas-Home became Conservative leader in October 1963, circumstances were very different. The government were a long way behind in the polls. Home clung on until the last possible moment, a year late, in the hope that something would turn up. It very nearly did as Labour won by the narrowest of margins.
Two other related cases might merit consideration. In 1931, a national government was formed when Ramsay MacDonald’s minority Labour government collapsed in the teeth of an economic, budgetary and sterling crisis. MacDonald didn’t want to go the country (there was no constitutional need to), but Baldwin forced him to seek the famous ‘doctor’s mandate’. Baldwin’s motives for so doing were, as ever, complex, but they were in no small part thanks to the racing certainty that the result would be an overwhelming landslide that would crush Labour (and the Liberals) and see the Conservatives in power under the National cloak for a long time to come.
MacDonald stayed on as PM until June 1935, when his failing powers compelled his resignation and the return of Stanley Baldwin (who had, in effect, been the real power behind the throne since 1931 in any case). Baldwin called a general election in the November and it was a campaign that made much of his character (‘and I think that you can trust me by now’). Once again, though, the reason for calling the election owed more to electoral calculation. This was the end of that government’s fourth year. Labour had recovered, but was led by the frankly improbable George Lansbury (until he was forced to resign just before the election). Another landslide looked a certainty. It was, simply, the right time in the electoral cycle to go to the country.
What then of all the others? Asquith took office upon Campbell-Bannerman’s demise in 1908. There were no elections until the constitutional crisis engendered by the People’s Budget saw two, which the Liberals won (with Irish nationalist and Labour support), in 1910. Similarly, there was no election when Chamberlain took over from Baldwin in 1937. Famously, it didn’t end well, but had Adolf Hitler not intervened the national government would probably have won comfortably in 1939. When Macmillan took over from Eden, he did not go to the country for another two years (four years into the life of the government, at a natural point in the electoral cycle. He also won big. Likewise, John Major held electoral fire after Margaret Thatcher’s fall. When he did go the country, at the latest possible point, he won. None of them felt compelled to seek a fresh personal mandate. The electorate had already spoken.
Lloyd George and Churchill both took office in the very special circumstances of war.
Two Labour prime ministers took office mid-term. In neither case did it end well. For Jim Callaghan, there was no question of a snap election in the midst of economic and political turmoil. Brown was tempted, then stepped back.
There is, and never has been, any constitutional imperative upon a prime minister taking office to seek a fresh mandate in a general election. There is an argument for saying that there is a political one. Whilst, technically, we elect an MP in a representative democracy, not a government, that in reality people are in fact voting for a prime minister, the argument runs.
There is some germ of truth in that, sometimes. In recent times, we have had two dominant (and polarising) political figures, In the 1980s, many felt they were voting for Margaret Thatcher (or, indeed, against her); the same applied to Tony Blair. Some campaigns were explicitly centred upon a leader. Churchill in 1945, and Lloyd George in 1918 come to mind here, but they were both in the aftermath of war. In the heyday of two party politics (in 1951, for example) there is an argument for saying people were voting for a prime minister or, at the very least, a government.
It is, however, a long time since we had such a two party system. Even in the heyday of Thatcher or Blair, what of the six or seven million (around one in five) who voted Liberal Democrat? Surely very few of those who voted in, say, 1987 or 1997, believed that David Steel or Paddy Ashdown were about to become prime minister? And what of those who vote in support of a local MP, who have little time for their party leader?
And we’ve not even mentioned Northern Ireland.
It is even truer now. In the last general election there were 56 SNP members returned: the nigh on 1.5m who voted for the nationalists were not voting for a prime minister in any sense. Nor, realistically, were the close to 4m who voted UKIP, or the 1m who voted Green.
To put it simply, general elections are more complex phenomena that a quasi-presidential contest. We elect a parliament. The prime minister has to command the confidence of the House of Commons. That is how our representative democracy works, and has worked since the inception of mass politics in the 1860s and democracy itself after the First World War.
There is another constitutional precedent that might once have morally compelled Teresa May into calling an election (and could, however, unlikely, still do). In the past, major constitutional crises of upheavals outside of wartime could morally compel general elections: peers versus people in 1910, or tariff reform in 1923, even the formation of a national government in 1931. There is a good argument for putting the decision to leave the EU in the same bracket.
That water was, however, muddied by the constitutional novelty of the referendum. Nonetheless, the fact remains that referendums are now an established practice (1975, Scotland, Wales and Ireland, electoral reform, local politics). The lessening of parliamentary sovereignty (ironically) implicit in that practice is now fact.
In the last election, an in-out referendum was an explicit part of the Conservative manifesto. That referendum was held. Parliament is not constitutionally bound to accept the advice of that referendum, of course. But neither is there an obligation upon the part of Theresa May to go to the country in a general election to sanction Brexit.
And I’ve not even mentioned the Fixed Term Parliaments Act.
In short, neither or constitution, history or current politics compels May to call an election. Of course, fixed term or no, the sight of Labour frantically committing hari-kari might make the idea of a Tory with Brexit mandate tempting, especially given the small majority she currently commands (and the likely febrile state of the more committed Brexiteers, and even Remainers on her backbenches in the months and years to come). As for, say, Wilson in 1966, or Eden in 1955, there might end up being compelling party political reasons for getting round the fixed term and going to the country.
But neither constitution, nor history, demands that she should.