The United Kingdom is not now and never has been a country with a codified constitution. We do not have one, I would argue we do not need one, and to quote the former President of Libera, Ellen Johnson Sirleaf, “we like ourselves just the way we are”.
Amidst the global COVID-19 pandemic, the Prime Minister of the United Kingdom, Boris Johnson, has contracted the Coronavirus. This was announced on the 27th of March and he was admitted to hospital on the 5th of April when, after 10 days, some symptoms were still manifesting. On the 6th of April his condition worsened, and he was transferred to the intensive care unit of the hospital. It is important to note that he has remained conscious and has not thus far required the use of a ventilator. It was announced that Dominic Raab MP, the Foreign Secretary, and First Secretary of State, will act as Deputy for Johnson, if necessary.
It begs the question: what are the legal aspects of this? As the UK does not have either a codified constitution or a Presidential system, there are no legal provisions for the role of a Vice President, or for who will take over in the event of the incapacity of the Prime Minister, nor for how long such a move would be, or what powers they would have the right to exercise in this position.
In the United States of America there is a constitutional position of Vice President, elected on the same ticket as the President, who serves as a deputy to that President and will, if and when the President is incapacitated, step up to either serve as President for the period of time they are incapacitated – or, in the event of the death of the President, will themselves be sworn in as Commander in Chief. Article II, Section 1, Clause 6 that states the Vice President will take over the “powers and duties” of the presidency if the following circumstances: the President’s removal, death, resignation, or inability. Similarly, Section 3 of the 25th Amendment covers “self -declared incapacity”. Some examples would be when, in 1985, President Ronald Reagan underwent surgery and Vice President George H. W. Bush became acting President for approximately 8 hours. Bush’s son, President George W. Bush, also underwent medical procedures in 2002 and 2007, under sedation, which empowered then Vice President Dick Cheney to become Acting President for around two hours each time. One cannot forget how, in front of the President’s bloodstained widow, Vice President Lyndon B. Johnson was sworn in as President on Air Force One after the assassination of President John F. Kennedy in 1963.
Whereas in America the Cabinet nominees are subject to Senate approval, the Cabinet of the UK Prime Minister is approved by the Monarch who, by convention, does not raise objection to those selected by the Prime Minister. The role of “Deputy Prime Minister” has tidally come in and out of existence. One of the prerogative powers of the Prime Minister is to create, modify, and abolish departments as the need arises.
Whereas, during the Conservative-Liberal Democrat Coalition 2010-2015, Nick Clegg truly was Deputy Prime Minister, in the Johnson Ministry there is no such position and Dominic Raab is not Deputy Prime Minister. Whilst, it is true, he is de facto Deputy Prime Minister, this title or position is not his de jure. There is no such permanent title or position, nor has there ever been an Act of Parliament that ennobles a specific person to act as Deputy Prime Minister, or to become Prime Minister in specified circumstances. If a Prime Minister dies in Office, as seven have, there is no automatic successor. The last Prime Minister to die in office did so in 1865 but even then, it was the Foreign Secretary that succeeded the deceased PM. It is convention, perhaps, that the Foreign Secretary takes over but there is no legal basis for this and nowadays this is for the PM to decide. For example, during the 2016-2019 May Ministries, the de factor Deputy PM was David Lidington who served in various Cabinet roles – Justice, Leader of the House, Minister for the Cabinet Office – but never Foreign Secretary.
It is important to consider what powers Dominic Raab may exercise and for how long. Could he, for example, extend the lockdown? It is unlikely, as it has been specified that Raab will deputise only “where appropriate”. Furthermore, it is to be questioned exactly how “incapacitated” Johnson is. Yes, whilst albeit not in suit and tie at the podium, he is still alert and conscious and capable of sending instructions and communicating with his team.