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’.
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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.
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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.
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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.
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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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Just one of the problems related to this is that week after week, the current Speaker makes no attempt whatsoever to hold Johnson to account in either answering a question or speaking the truth. What is the role of Speaker? Ceremonial?
Good question! To repeat what I said in another response, how appalling that the Speaker will discipline an MP for calling another a liar yet the liar gets away with his or her lies!
I think you’re right, it seems highly unlikely that Bercow would have ignored these transgressions
Sir Lindsay Hoyle’s campaign was based on his determination to be an invisible facilitator
What a quaint misunderstanding of the requirement of a Speaker during this government’s term
I don’t know if it would do any good, but it would certainly publicise the problem if Keir Starmer refused to participate in parliamentary questions until Johnson corrects the record on the matter in hand. After all, there’s no point in carrying on with asking questions of the prime minister if he won’t take responsibility for the truth of his responses
I think Johnson would be delighted
And Joe Public would in no way care.
The UK’s system of universal suffrage does permit voters to choose a loveable rogue who makes you laugh even if you can’t believe a word he says, over a dreary do-gooder who makes you miserable by reciting uncomfortable truths.
No part of the electorate voted Johnson into the role of Prime Minister.
In the UK political system, the Commons effectively functions as an electoral college to choose the Prime Minister. Votes for Conservative candidates are effectively votes for Johnson as PM.
When the PM’s party has a comfortable majority, that may in practice be its principal function.
Curious how powerful some conventions are in the House. Use of the l-word is so out of order that when Ian Blackford was heard to use it (quite correctly, about Johnson) that the Speaker deemed him to have withdrawn it, even though he didn’t.
Yes, how can it be that one can be disciplined for calling someone a liar but not for lying?
As so often on this blog, these are important and sobering reflections. It is indeed, as Mr. Green says, depressing, but it is most helpful to follow his logical steps which are completely convincing.
You are right, and it’s a real problem. My suggestion: much of the business of Parliament depends on the willingness of the political parties to cooperate eg the pairing convention. If one party persistently breaches established conventions it must be open to the others to retaliate. Indeed, I’d argue that there is an obligation to do so.
Depressing indeed, and now we’ve had the statement that he does not need to apologise because everyone else misunderstood his words in the House yesterday. He was of course referring to Labour’s voting position on the Queen’s Speech. It feels straight out of the Republicans play book and makes me think that if you were to show our current PM a zebra he would tell you it was pink and blue if that in some way resulted in an advantage for him and that you were wrong to view it as being black and white.
“The Prime Minister should not advise the monarch to prorogue Parliament without reasonable justification” was a mere constitutional convention for centuries.
18 months ago, it became a codified part of the written constitution when the Supreme Court gave its judgment in Miller II and Miller/Cherry.
Do you not see that as a significant development?
Here’s a crazy suggestion:
Art. 57(2) Dutch Constitution
A member of the States General may not be a Minister, State Secretary, member of the Council of State, member of the Court of Audit (Algemene Rekenkamer), National Ombudsman or Deputy Ombudsman, member of the Supreme Court, or Procurator General or Advocate General at the Supreme Court.
In the UK, for some reason it is impossible to combine being an MP with being Steward and Bailiff of the Manor of Northstead, but combining being an MP with running a government department that is under the direct scrutiny of the House of Commons is fine.
Fun fact: before the 1920s, and MP who wished to accept a ministerial appointment was obliged to resign from the Commons and stand for re-election.
I know. That was a start, but (if I remember correctly) it was typically a mere formality, with no-one really fighting the bye-election and everyone always getting re-elected.
Indeed, this quite common across parliamentary democracies, as this needed to ensure the separation of powers.
Is there scope for a petition which would have to be discussed in Parliament – if sufficiently supported. For instance, a petition calling for the UK Statistics Authority to call out Ministers for their factual lies – a job it presently does only in relation to statistics but, as with the lie about Labour voting against an NHS pay rise, would be readily identifiable as a lie.
What of the potential use of “misconduct in public office” statute?
Surely if the PM has (deliberately) decieved the House that is misconduct in public office.
We need to bring in a statute that makes lying (for personal or party gain) as part of an electoral campaign, or a referendum, a criminal offence. Johnson et al have played fast and loose with the truth because they know they can do so with impunity. In addition to urgent reform of our electoral system, we need to replace the “Gentlemen’s agreement” style of conventions with actionable laws with teeth – Mr Johnson is no “gentleman”.
It’s clearly absurd that the Speaker goes nuts if any member accuses another MP of lying to the house, but has no power to police the lie in the first place, however blatant it is.
It’s also unhelpful that telling lies is referred to rather prissily by the much broader euphemism of ‘misleading the House’. Misleading the house is the stock in trade of most debates; it comes in lots of other forms as well as a direct lie: half-truths, misleading statistics, false logic, ridiculous straw men, highly selective facts, and so on. If such behaviour were really excluded, the debates would be a lot shorter and possibly much more effective – but we can only dream.
Some of our parliamentary conventions look as archaic as the ramshackle building in which they are conducted. There are much better examples of how to run a legislature elsewhere in the world that we could usefully learn from, not that I expect that there is any appetite for that in government. It suits them very well to preserve a historical pantomime rather than looking to replace it with anything more business-like and effective that might challenge their authority. Cloaking it all in pageantry and mumbo-jumbo is another method of distracting us from what actually is achieved in our much-vaunted ‘mother of parliaments’.
It would need close working alliances between interventionist Speaker, Parliamentary Standards Committee and parliamentary Ombudsman to uphold parliamentary conventions against the forces attacking them …
Perhaps some of those aggrieved by Johnson’s and others behaviour (eg Hammond, May, Grieves, Heseltine, Bercow, etc) would be willing to build such alliances if asked? Do these people read this blog?
It’s easy and quick to undermine respect for rules which are without painful sanctions. Sadly, it takes years of sustained effort and intelligent, empathetic creativity to undo the damage.
Labour might find this a helpful hook upon which to hang their coat.
It helps to have a compliant and ineffective Speaker. The current specimen commands no respect. Prime Minister’s Questions – always a questionable interlude – are now a farce. I no longer listen but instead read John Crace’s political sketch in the Guardian: one might as well laugh at the tawdry ghost of what once was supposed to be a rigorous holding to account.
Great piece, thank you. The Constitutional position and the House of Commons conventions really matter here. There is no point in PMQs or even Parliament as a whole if there is no retribution if untruths are not corrected. In relation to yesterday’s PMQs, the Prime Minister either lied (not acceptable) or he is not in control of his brief (!). These are matters of fact, not opinion. This needs to be explicit and understood by as many electors as possible. Allowing Ministers just to “double down” on lies is no more acceptable to a working democracy in Parliament than it would be in a court of law.
Mr Johnson seems to take great pleasure in word play, especially if the word brings ambiguity. Three examples:
1. Having brushed off accusations of falsehoods, or exaggerations of what a trade agreement might make possible, Mr Johnson emphasised the opportunity for ‘Melton Mowbray pork pie’ exports to the N America.
A trade representative subsequently explained that cold pastry does not travel well, and that the US palate did not enjoy a minced pork snack. A ‘pork pie’ is cockney slang for a lie.
2. Mr Cummings enjoyed Mr Johnson’s protection for an extended period after his sight test by way of a drive to Barnard Castle. In the colloquial language of the North East, ‘telling a Barnard (Castle)’ is slang for telling a tall tale.
3. An ‘Australian-style’ relationship with the EU might have referred to ‘no deal’, or it might have referred to the fact that Australia and the EU commenced negotiations in 2018 to prepare for a trade agreement – a process likely to take many years, and be subject to periodic readjustment.
Absent thorough journalism outside the House, or a good fact-checker advising the speaker real-time in the chamber, Mr Johnson is at liberty to behave in keeping with his colourful reputation.
The rules of politics are being rewritten by authoritarians and contrarians, at the same tome as the UK electorate no longer responds to the old adage (attributed to Bill Clinton), ‘its the economy, stupid’.
However galling it may be to those of us who values facts and truth, Mr Johnson is the present beneficiary of the national mood, and will continue in this vein as long as he has a supportive majority in the House, and an electoral majority in the country.
There will only be a sanction -at the ballot box- if a sufficient number of voters care that the PM repeatedly lies.
Unfortunately recent polls appear to show that the public is either not aware or does not care.
Lack of awareness comes from the fact that a large section of the media either practice self-censorship to avoid possible boycott or attacks by the government or their lackeys or actively act as a propaganda mouthpieces for the government. One can hope that being better informed would turn these voters away from the government.
But most worrying is the attitude of those who are aware and simply do not care.
The most pressing question in UK politics today is one you raised in the past: how can one make people care that they are being lied to?
Perjury is an offence in Law. How can a person committing the equivalent in Parliament be allowed to get away with it on a regular basis?
Because the PM is his own judge and jury, as long as he controls the majority. (And if he doesn’t, he won’t be PM anymore.)
When did the idea of a ‘point of clarification’ – which the Speaker contrasted with a point of order – enter the procedures of the House? I had thought that a member might ask for some statement or question to be clarified: this would properly be raised as a point of order. Ashworth did not ask the Speaker to clarify anything: he asked the Speaker to tell Johnson to correct the record. Which he didn’t, and Johnson hasn’t.
Commenters who found the Speaker’s response to Jon Ashworth to be rather timid might be interested to know that the Speaker followed up with stronger comments today:
“I also want to make a statement following the point of order that was raised at the end of yesterday’s Prime Minister’s questions by the right hon. Member for Leicester South [Jon Ashworth] concerning the accuracy of the statement made by the Prime Minister. […] All Members should correct the record if they make an inaccurate statement to the House. They can do so by raising a point of order or in debate, or, in the case of Ministers, they can make a statement or issue a written ministerial statement. The Government’s own ministerial code could not be clearer about what is expected of Ministers. It says: ‘It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity.’ […] All Members of this House […] must take responsibility for correcting the record if a mistake has been made. It is not dishonourable to make a mistake, but to seek to avoid admitting one is a different matter.”
Hansard: https://hansard.parliament.uk/Commons/2021-03-11/debates/D8F4BC4C-9DEC-4590-B29C-10026B520E58/Speaker%E2%80%99SStatement#contribution-15F12575-A214-4C8D-9EBB-77788B091EEB
Its good that the Speaker made this statement. Now what happens if Johnson does not correct the record? What sanctions are available to the Speaker?
This is depression caused by learned helplessness. Johnson’s behaviour eats at the souls of those who believe these things matter. As it did in the US with Trump. Johnson is doing all he can to ensure he is in power for at least another term and it’s very hard to see how he can be stopped. There will be no Scottish indy 2 and northern Ireland will limp on. We must come to terms with the fact that understanding what is politically expedient for Johnson is undoubtedly what is going to happen. Or at least appear to happen.
I think a Johnson implicitly invokes the trump norm of democracy itself as against other norms: “those who believe in the primacy of justice call me a bad man, and let’s say for purposes of argument that’s true: yet we live in a popular political society in which bad and good can be no more nor less than what the majority prefer, and they have formally spoken”.
It’s hard to talk about political accountability giving a different result, when Johnson’s party was handed power with such a vast landslide, at a time when his dishonesty wasn’t exactly concealed.
I’m not even sure were we to make it a freestanding political question, and the public were to participate in a referendum on whether they prefer “truth” or “lies”, they’d choose the former in great numbers! After all the two great parties for which however many % of us vote, hardly portray their opponents with an honest charitability.
How about this for a form of words (lots of variants possible):
“Mr Speaker, I would love to be able to say that I believe that the prime minister has just told us the truth, but unfortunately the conventions of this House prevent me from doing so – if I were to make such a statement I would be guilty of misleading the House.”
A teacher wrote of Johnson in 1982, towards the end of his time at school:
“I think he honestly believes that it is churlish of us not to regard him as an exception, one who should be free of the network of obligation which binds everyone else.”
The leopard does not change its spots, and nothing has changed. He just does not consider himself bound by the commonly accepted rules of society, except when it might advance his personal interest.
He has been sacked several times when caught out patently lying, and indeed lying to cover his lies. 18 months ago, Dominic Grieve correctly described him as a “pathological liar” with “no moral compass of any kind at all”. That applies just as much in his personal life as in his career.
He is a living embodiment of exceptionalism. That we have this deeply flawed man as Prime Minister beggars belief, almost as much as Trump becoming US President.
There is little point having any kind of relationship with such a person, but what happens when someone like that is put in charge?
The conventions, or customary practices, of parliament are written down, aren’t they? Aren’t they found in Erskine May? And whatever happened to the seven principles of public life, detailed by Lord Nolan in the 1990s? Upholding these rules – almost always against the government – must rest with opposition parties. They should not let examples of dishonesty go unnoticed. They should continue to make a fuss. ALL opposition parties should work together on this. Johnson is the worst example among recent PMs of deliberate and unashamed deceit. [Blair and Iraq was less clear cut.] When he should be leading by example of his commitment to politics, he is doing the opposite, making people ever more cynical. Depressing times
Erskine May is available to read online at erskinemay.parliament.uk .
Famously, it is a guide to the House’s precedent and practice — ie what has happened – rather than being a prescriptive rulebook.
Lies that politicians tell in the House of Commons seem to receive much greater scrutiny and challenge in the media than all the lies that they tell outside the House of Commons. Those ones often gain media acclaim and amplification.
I hope you’re right but I fear that the media are driving a similar level of challenge for those they support to the one they have fostered for some time outside Parliament. If what is said in Parliament cannot be relied on as “true” – or as a minimum “factually correct” – then there is no point in Parliament and (ultimately) democracy.
It is not the Speaker’s role to punish or otherwise sanction any Member who misleads the House.
The Speaker’s role in the Chamber is to chair debates, to maintain order and to enforce the orders and resolutions which the House has itself made.
The House itself has the power to punish Members found to have misled it. Typically this is done through the tabling of a substantive motion criticising the conduct of the Member concerned. The motion can propose sanctions and remedies, which if agreed to may (depending on what is proposed) take effect as an order of the House.
Whether and how the motion itself gets onto the Order Paper for substantive debate and decision is a question for those who control access to the House’s agenda. See, for example, the recent report by the UCL Constitution Unit on the House’s control of its own time.
“He will steal, sir, an egg out of a cloister: for
rapes and ravishments he parallels Nessus: he
professes not keeping of oaths; in breaking ’em he
is stronger than Hercules: he will lie, sir, with
such volubility, that you would think truth were a
fool: drunkenness is his best virtue, for he will
be swine-drunk; and in his sleep he does little
harm, save to his bed-clothes about him; but they
know his conditions and lay him in straw. I have but
little more to say, sir, of his honesty: he has
every thing that an honest man should not have; what
an honest man should have, he has nothing.”
All’s Well That Ends Well, IV, 3
Ignoring conventions (or customs) is a long standing ground for complaint against tyrannical rulers in these isles.
The Articles of Deposition of King Richard II provide compelling evidence of the weight that should be given to convention. They recited well known episodes in the reign – without resorting to mud slinging. Adam of Usk recorded that the legal experts advising Henry Bolingbroke (to become Henry IV) believed Richard was tainted with “perjuries, sacrileges, sodomitical acts, dispossession of his subjects, the reduction of his people to servitude, lack of reason and incapacity to rule.” None of these charges appeared. However few of the 31 Articles of Deposition appear to refer to breaches of the law – Articles 26, 17 and 19 refer to breaches of Magna Carta. Article 16 alleges that Richard attempted to set aside statutes on the basis of petition by the commons alone.
Some of the other misdemeanours may well have involved breaches of laws. However a majority of the Articles appear to allege breaches of customs of conventions, and not of laws.
Article 25 has a distinctly current ring to it: “the king was so variable and dissimulating in his words and writings, especially to popes, and rulers outside the realm, that no one could trust him.”
As you say, the question is what to do about persistent breaches of convention.
One answer is for the House of Commons to depose Mr Johnson.
If he is nort removed by the Commons, what remedies exist?
It is clear that the charge that can be levied against Mr Johnson is that by flouting convention (and being openly willing to flout both international and UK law) is that he has made himself a tyrant. The most comprehensive analysis of the position of a tyrant in modern European literature is to be found in the writings of Jesuits between 1540 and 1630, conveniently assembled in Harro Hopfl’s “Jesuit Political Thought” (Cambridge 2004).
These writings do not provide sound grounds for dealing with the Johnson problem by force. The overall message is that we are stuck with him.
Mr Johnson was undoubtedly prudent to ensure that his son was baptised in Westminster Cathedral – it is unlikely that Pope Francis will excommunicate him and while many theologians considered that in a non-Christian state the civil authority could of its own volition depose and execute a tyrant, Christians could not do so without some papal support.
However where Mr Johnson may be in greater danger is in Scotland if an election which produces a pro-referendum majority and hen refuses to allow a referendum. Tyrants who seize a state are not – at least initially – protected by the status of legitimate ruler. As the three Stuart kingdoms slid towards civil war, an emissary of Charles I, sent to subvert the government in Edinburgh, was seized, tried and executed on the miden – an early guillotine. The machine – or a similar one – is in a museum and doubtless could be easily put into operating order.
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In the USA, the Washington Post ran a count of the lies perpetrated by Donald Trump, updating the count daily. The count was, on average, 21 per day or 30000 in total over his term of office. It might be a valuable project for a paper or respected website to perform a similar count with respect to Johnson. I would not expect it to reach such giddy heights, but a track of the parliamentary and extra-parliamentary untruths would gather weight, as a ball of glue on a sandhill.