11th March 2021
Yesterday the prime minister Boris Johnson misled the house of commons twice.
As you read that, you may perhaps shrug: so what?
This post sets out the ‘so what’.
The constitution of the United Kingdom is comprised to a significant degree of conventions.
In short: a constitutional convention is a thing that should happen in a given constitutional situation – and has a purpose – but which one could not get any court to order its enforcement.
As such constitutional conventions are distinct from the laws of the constitution which, in principle, would admit of a judicial remedy in the event of a breach.
A breach of a convention, however, is not a matter for any court.
This means that matters of compliance and breach of constitutional conventions are usually a law-free zone – and the means of compliance and sanctions (if any) for breach are dealt with other than by lawyers and judges.
That a prime minister – or any member of parliament – is honest in parliament is one such constitutional convention.
It is a powerful convention – for example, one implication of the convention is members of parliament cannot call each other liars in the house of commons.
The fiction is that there should never be a need to call another ‘honourable’ member a liar as there is a general obligation not to lie.
But the convention is even more powerful than this.
The convention that ministers shall not lie means that the entire system of parliamentary accountability is possible – debates have meaning, oral and written questions have a point, and so on.
Take away the obligation not to lie, and we would have even less practical accountability in our parliamentary system than we do already.
It would poison the wells.
For Johnson, however, such concerns must seem quaint.
For Johnson any given encounter is a game for him to win – and if he breaches any norm then he will seek to get away with it.
So confident is he in his ability to get away with any breaches of norms that he does not care even for the moral hazard of such breaches being opportunities for others.
(That one should comply with a rule because it means others would also have to comply with that rule is only an incentive if it matters to you whether others break the rules.)
It is not so much that Johnson wants to break the rules as an end in and of itself – he will comply with rules if it suits him,
Instead it is a general indifference to the rules – they will be broken or complied with as it suits him personally and politically.
Such an approach will always be attractive to certain politicians from time to time.
And so because of the possibility of such indifference, there has to be some means of enforcing constitutional conventions – or sanctions for breach.
These cannot be legal sanctions, as they are not matters for a court.
But not all checks and balances are legal mechanisms.
The problem with Johnson’s indifference is that there seems to be no effective means of enforcement or sanction.
Johnson does not care for the ministerial code and has already shown he will disregard it (as in the case of the home secretary).
The old stand-by of ‘being responsible on the floor of the commons’ has no purchase, as it is his conduct on the floor of the house of commons that is the problem.
And if the speaker of the commons – or anyone else – seeks to hold Johnson accountable, then the hyper-partisan bullies among Johnson’s political and media supporters will seek to attack the intervention.
So in effect, Johnson is immunised from being held accountable for misleading elected politicians in the house of commons.
And if that matters to you, that is your problem, and not his.
He will get away with it, and he knows he will get away with it.
And this is a problem – a meta-problem – that cannot be solved with demands for a written constitution.
Writing down conventions and publishing them does not give them life.
The issue also is not about his indifference – as this approach will be adopted from time to time by a certain type of politician.
The problem is about a lack of willingness to make this matter – for such a breach to have such consequences that the Johnsons of the political world do not see it as a viable political practice.
And it is the absence of practical checks and balances – of gatekeepers and of those credited with authority – that is the constitutional problem here.
Until and unless it can be made to matter that a minister should not lie to the house of commons – and by non-legal means as it cannot be a legal matter – then it will just carry on, because it can.
It is a depressing prospect.
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