4th February 2021
You will no doubt have an opinion on Boris Johnson, the current prime minister of the United Kingdom.
This post, however, will look at the prime minister not just as politician but also through the lens of constitutional law and practice – and, in particular, will examine one statement he made yesterday.
Boris Johnson has vowed to "do everything we need to do" – including an attempt to override post-Brexit arrangements with the EU – in order to "ensure there is no barrier down the Irish Sea" https://t.co/EQaAqFotgu— Sky News (@SkyNews) February 3, 2021
Everyone who cares knows that Johnson will not do – and has not done – ‘everything’ to avoid a barrier down the Irish Sea.
The fact that this statement is untrue is by itself neither here nor there: more than most politicians, Johnson knowingly says false things.
But for this blog, what is interesting about this lie is that its falsity engages four distinct examples of prime ministerial power.
For Johnson did everything as a prime minister for there to be a barrier down the Irish Sea.
Within a parliamentary system such as the United Kingdom, and with the constitutional theory that executive power flows from the crown, there are limits to what any prime minister can and cannot do.
But the Irish barrier question shows the ways in which a prime minister can exercise power.
First, a prime minister can change and set government policy.
And here Johnson broke with the policy of his predecessor on the (once infamous) ‘backstop’ in the withdrawal agreement.
Johnson, of course, did this for cynical reasons of political convenience – but it is a decision that only a prime minister could have made.
And Johnson did.
Second, a prime minister can enter into international agreements.
In constitutional theory, this is the prime minster using the royal prerogative to enter into those international agreements.
So having reversed the policy of his predecessor, he proceeded to agree the withdrawal agreement providing for a trade barrier down the Irish Sea.
And again, this was something he could only have done as prime minister.
Third, a prime minister – as leader of the party that wins a general election – can win a mandate for their policies.
Currently, calling a general election is outside the powers of a prime minister, by reason of the Fixed-term Parliaments Act.
But when there is a general election, and that election is won, the prime minister (and the winning party) then enjoys a mandate for their manifesto commitments.
And this mandate is constitutionally significant – for example: any policy with such a mandate cannot be blocked or delayed by the house of lords.
The (then) ‘oven-ready’ deal was mandated by the 2019 general election.
So, again, a mandate was something Johnson achieved as a prime minister (and which his predecessor failed to do with the 2017 general election).
And fourth, a prime minister is ultimately responsible for the government’s programme of legislation.
So: having reversed policy, entered into an agreement with the European Union giving effect to that new policy, and having won a mandate for the policy in a general election…
…the prime minister now ensured that the policy was implemented into domestic law with an act of parliament.
(Legislation that, of course, was pushed through with minimal scrutiny using the government’s newly obtained overall majority so as to ‘Get Brexit Done’).
That there is now a trade barrier in the Irish Sea is a perfect illustration of the various powers of a prime minister under our constitutional arrangements.
The trade barrier in the Irish Sea was Boris Johnson’s policy (which he reversed from his predecessor), which he agreed with the European Union and for which won a mandate in a general election, and that he then ensured was enacted into domestic law.
There was nothing more Johnson as prime minister could have done for there to be this trade barrier in the Irish Sea.
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