28th November 2021
The primary political problem – and thereby the primary policy problem – with the current government is, of course, the Prime Minister.
As this blog averred two days ago, there is no policy predicament so bad that it cannot be made worse by his intervention.
That the Prime Minister is at the centre of the government’s political and policy problems is well explained today by Adam Bienkov.
Why the real problem with Boris Johnson's administration is Boris Johnson. https://t.co/OOZxhKztvs pic.twitter.com/LqIQKoOnza
— Adam Bienkov (@AdamBienkov) November 28, 2021
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But.
From the constitutionalist perspective, the significance of Boris Johnson’s premiership is not really about him, but about what he can or seeks to get away with.
For Johnson is the politician supreme – an outstanding politician: in obtaining power, in holding on to power, and in evading any responsibility for how he exercises (and does not exercise) his power.
(For those to about to reply demurring from that last proposition, please note that it is not a compliment.)
Johnson is Prime Minister, and his opponents are not.
And Johnson’s premiership is a practical exercise in showing the weaknesses of the constitution – so much so that, like Margaret Thatcher and Tony Blair before him, he is more likely to be brought down by hubris than by any formal constitutional mechanism.
The weaknesses are, for examples, that a Brexit was done but without any proper scrutiny of the the withdrawal agreement; that similarly Covid law and policy has been and continues to be implemented without any proper scrutiny or accountability; that we have weekly shoddy policy making at the highest level leading in turn to weekly u-turns and chaos; that we have a minister of state conducting an erratic and shouty Brexit policy and playing with Northern Ireland’s future without any obvious cabinet interest or concern; and so on.
The manifold manifest failures of the current administration are not just the failures of one arch-politician, they are also systemic and structural.
Different parts of our constitutional arrangements are not doing their job.
And then when we look at how freely Johnson’s government is seeking to frustrate, circumvent or simply abolish any check and balance – from judicial review to the Electoral Commission – then you see further systemic and structural weaknesses.
‘The poor quality of the Johnson administration is not a bug, but a feature’, observes Bienkov correctly.
Yet Johnson’s premiership is, in turn, a symptom of our weak constitutional arrangements.
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At this point in this sort of discussion there will be a Pavlovian reaction that this means that we should have a written (that is codified) constitution.
But that would not necessarily help.
First, given the doctrine of parliamentary supremacy there is no way that a codified constitution can be put in place so that it is safe from easy amendment or repeal.
Second, a codified constitution can be illiberal as well as liberal, and any general code put in place in the current charged authoritarian political environment may well be less welcome than the current situation.
What is needed is not so much a new constitution, but for constitutionalism to be taken seriously.
Constitutionalism is the notion that there are political rules more important than any political expediency.
There are also a range of discrete statutory improvements that can and should be made – such as: dealing with the appointment to the House of Lords, reducing the scope of unscrutinised delegated legislation, placing the remainder of the royal prerogative on a statutory basis, and so on.
Perhaps even electoral reform – though that, like a codified constitution, is not necessarily a liberal panacea.
But, on any basis, the constitution does need to be Johnson-proofed, for the next politician supreme to get almost absolute power in the United Kingdom may not be as sloppy a buffoon as Johnson.
And there is little in the constitution to stop them.
Johnson’s premiership may be dreadful in and of itself, but it also a warning.
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You picked a good day to post that.
Any day would be good but civil servants banned from inviting speakers that criticise the PM it is perfect timing.
Great comment !
I can’t personally see any way forward long term without installing PR. Only with PR can we eradicate the extremes of left and right then move forward consensually to a written and accountable constitution virtually overhauling our democratic process.
The question now is how do we get PR?
Be careful what you wish for: PR is a large class of systems, some of which are worse than what we now have. Party list systems entrench party power even more. What we need is a form of PR which does not recognise political parties – such as is used in Ireland.
I quite agree, a list system would be a disaster. The best system is Single Transferable Vote PR as used in Ireland.
Ironically, it was imposed on Ireland by Britain:
https://www.rte.ie/centuryireland/index.php/articles/britain-the-proportional-representation-question-a-lesson-from-ireland-1920
Yes a codified constitution can be illiberal, but an uncodified one can be abused. Taking constitutionality seriously is a great aim, but cannot prevent a determined PM from breaking such ideals and doing whatever they please. A codified constitution and a strong and independent Supreme Court would prevent such excesses. I’ve long thought the drawbacks of a codified constitution far outweigh the possible drawbacks.
If we had a codified constitution Brexit would have been much harder to push through on the basis of an advisory referendum and we wouldn’t be in the ridiculous situation we have now.
My very thoughts. As I have heard it said many times, the U.K. constitution is not worth the paper it is not written on.
Johnson is a lazy buffoon but it’s not just him or his backers from whom the constitution requires protection. The mild mannered & apparently competent Cameron and May in their own ways have done untold damage and yet they and their party remain unaccountable to parliament or the elecorate.
Unless and until the necessity of electoral reform is recognised by the combined opposition, we’re likely to be stuck with a legislature with a majority in thrall to the unicorn of a paradoxical, isolationist but global Britain.
My answer to Cameron and May is the same as for Johnson, although on far fewer counts.
Doesn’t a prime minister have a duty to consider the consequences of their decisions?
Did Cameron exercise that duty with due diligence when he decided unilaterally to make the referendum a binding one?
Or did he neglect that duty?
He turned the public’s trust from a thing which should be treasured into a cudgel to beat dissenters into submission.
My view, is that Cameron, is the ultimate incompetent in this whole sorry saga. Without his lack of care none of what has followed should have happened.
Just so.
Looking for a new constitution? These people are very good at them, with loads of hands-on, practical experience from many countries…
https://venice.coe.int/WebForms/pages/?p=01_Presentation&lang=EN
Here are the countries they deal with, including the UK…
https://venice.coe.int/WebForms/members/countries.aspx?lang=EN
Here are the UK representatives…
https://venice.coe.int/WebForms/members/countries.aspx?id=54
And here is what they’ve said about the UK in the past…
https://venice.coe.int/webforms/documents/?country=54&year=all
Yes. We need to do some root cause analysis. Johnson is a disaster but the flaw is not just the man himself but how so obviously flawed a personality could have been allowed to reach this position of eminence and power. Lots of reasons (FTPT the lunatic right wing press Facebook/Twitter, membership election of leaders of the parties) so we need a radical reformer to correct all these and more. Johnson is self destructing but look at the damage he is causing. A high price to pay for fixing already obvious flaws. Apologies for any typos, typed from a phome
Indeed, regarding a codified constitution: For example the 2nd Amendment to the US constitution and the inability to amend the amendment is a prime example of why written is not necessarily better.
Of course Johnson wouldn’t be the problem that he is, unless 13 million+ people had voted to in effect make him PM. So, to paraphrase the seasonally wise words of the late, great Greg Lake; the PM we get we deserve.
Amendments can be changed
Article V of the Constitution provides two ways to propose amendments to the document. Amendments may be proposed either by the Congress, through a joint resolution passed by a two-thirds vote, or by a convention called by Congress in response to applications from two-thirds of the state legislatures.
Never forget disastrous Corbyn.
Yes, written (codified) constitutions per se are not a garantee against governments steering towards authoritarianism – although I cannot imagine Italy (for instance) being governed other than by the codified rules as set by our republican constitution, in spite of the many codicils open to interpretation.
So constitutionalism, statemanship, are the keys. But that requires a political class up to the challenge and regrettably there is plenty of void worldwide in that sense. You say that Johnson is a sloppy buffoon, which is certainly true. However, I suspect that his being as he is serves the purpose of tickling the bellies of the useful idiots: the bullying nationalistic, the nostalgic, the imperialistic electoral basis of his party.
As regards the UK, I feel the real problem is the absolute lack of a clearly oriented, determined and credible opposition. Open prairies for them, but where are the thinking heads?
There’s little any opposition can do faced with a safe majority of loyal government party MPs. Nor when the opposition party is not taken seriously by most of the press, whatever it does. However the past few weeks shown how effective the same opposition is when the government back benchers are rebelling and the press agrees with the opposition arguments.
Sorry, probably my wording was misleading. I’m quite sure that there’s very little “any” opposition can do in the course of the current legislature. As a matter of fact I was thinking of the next general election and that’s where a credible, determined, effective opposition should play an important role. Yet my question remains: where are the thinking heads to promote a radical change, irrespective of a strong rightwing press and media in general?
Come the next election the best hope is the Tories are so mistrusted that media support, or attacks on Labour, won’t help them. The problem is that opposition parties will never agree to operate as a liberal-left alliance. No opposition master plan will get around that. Hopefully Labour will at least be the largest party in a hung parliament.
Regular readers will be tired of hearing this from me, but most of these things that we complain about from this prime minister are acts of misconduct, and as they are done by the prime minister, that makes them misconduct in public office.
I am not convinced that there is anything wrong with our constitution because it allows for the prosectution of misconduct in public office and incarceration of those found guilty for anything up to life imprisonment.
The problem with our constitution is basically user error.
It may allow their prosecution but when did the threat of that stop any minister or prime minister from misbehaving? Something being illegal does not stop it happening. Even if prosecuted, the misconduct will have happened and can’t be undone by jailing the offender. The Tories are very keen to weaken judicial review, public information requests, etc. Things a written constitution can protect.
Politicians would always argue they acted in the best interests of the country in the circumstances pertaining the time. Apart from blatant corruption I doubt any such prosecution of ministers would succeed. Even if successful, prosecuting ministers after the fact is of little practical use to the public. We need a system to protect our freedoms against unconstitutional legislation and actions when they happen.
I start to think all of this is not about Brexit or the EU, it looks like a chance to change the UK to what ever their plan is for their UK, because they can. And there is not much that could stop them. The PM will exchanged, but the plan whatever it is wont.
Change is born out of necessity and i dont see any need for them to change their behaviour or the system, to get what they want.
And yes i am aware that all of this sounds like a stupid CT
and i really hope it is.
Why can’t Parliamentary Supremacy itself be abolished by Parliament to enable a new Constitution, which henceforth forbids its own modification by Parliament?
“For Johnson is the politician supreme – an outstanding politician: in obtaining power, in holding on to power, and in evading any responsibility for how he exercises (and does not exercise) his power.”
I note this is not a compliment. But are these qualities the ones that are held by politicians? Are outstanding politicians those that obtain, hold and exercise power?
Is holding and exercising power the test? For example does Tony Benn qualify as an outstanding politician? He held some power and exercised it often for contradictory policies, but he exhibited great authority and through his role in the Labour Party arguably led to Corbyn being elected as leader of that party. Whatever one may think about either of the two politicians, is there argument who was the outstanding politician?
As a thought experiment, what would it take to overturn the doctrine of parliamentary supremacy such that a constitutional statute could not just be overturned by a subsequent parliament? (Assume here that some more demanding but not impossible threshold was set for making subsequent constitutional changes).
The idea that it is literally impossible to overturn the doctrine seems… bold. So there must be a way.
By analogy, other countries have got from eg absolute monarchy to something constitutionally modern. So we ought to be able to.
a french revolution or loosing 2 WW like we germans did would be my guess. Other than that i dont know, the crown has to keep out of politics and has given spuremacy to parliament but parliament is a servant(????) of the sovereign.
But i am just guessing and would welcome any correction
how it really is suposed to work.
All constitutions have a bit of magic at their core- from divine right of kings to, in the US, taking an oath of allegiance to it. Parliamentary supremacy is our current bit of magic- it isn’t definitively written down, it is just accepted as (ahem) gospel truth.
I agree with your extreme examples- but really wanted something a bit less radical.
To hazard an answer to my own question, a “Constitutional” Act of Parliament that expressly said it could only be amended after an extra-Parliamentary approval process (probably a referendum and/or devolved authority assent) and/or a super-majority in Parliament, and which had itself been subject to precisely the same approval process, including an express right of the Supreme Court (or equivalent body) to strike down any subsequent amending statute that did not satisfy the approval conditions, might have sufficient magic about it.
A small change that might help (in the unlikely even it could be introduced!) is perhaps a requirement that each candidate for MP must have a minimum of 7 years experience in a job / volunteering position outside of Westminster and politics. People whose life experience is restricted to being a cog in the political game haven’t had much opportunity to see how the world looks like to non-politicians and what voters want from their representatives.
May be the Problem is the upper education System which goes back to the good old empire days, when England was ruling the World and as a relativley small country, needed selfconfindent Leaders to rule all those countrys. They are educated to be absolutly sure they cant do wrong, not to think or listen but to command and rule. And that would have to change first i guess.
In the 21 century a very unhelpfull way educating your future Leaders imho.
Agree.
I think that I accept the logic of your arguments.
BUT (it is a big but) what is it that we can do to try to mould our mystical unwritten constitution to make it proof against future Johnsons?
Gina Miller as a brave and bold individual (and with a great deal of backup funding) challenged successfully his most egregious outrage, but it has seemingly done nothing to moderate Johnson’s behaviour.
I am (unusually) genuinely confused about whether there is anything we can do to protect liberal democracy.
Agreed. It’s truly frightening.
If you look at what Mussolini## did in 3 years to Italy to “facilitate” the country’s transformation from a democracy into dictatorship, the parallels between his and Johnson’s general operational styles are close enough to be worrying. The UK is no better placed to resist a drift into dictatorship than Italy was, I feel.
Johnson’s a political lightweight who couldn’t “run” a dictatorship for long – but those who back him may be much more dangerous.
##ex journalist with strong media support; populist politician hot on vainglorious slogans (though not on delivery of his political promises); closely associated with wealthy extremist backers; able to call on “foot soldier” mobs of dissatisfied, noisy and sometimes thuggish supporters. Gained Il Duce powers through a combination of legal /parliamentary tactics and lawless intimidation.
As you rightly say, the likes of Gina Millar and the Good Law Project are our best hope to prevent Johnson subverting our uncodified constitution. The only guarantee of that continuing is for the judiciary to be completely independent of political influence. How that can be guaranteed while the Lord Chancellor is a cabinet minister in the pocket of the PM is hard to see.
Wouldn’t it help to have a head of state who has some agency and guardianship of the “constitution”?
The spectacle of Johnson requesting prorogation from the Queen, with both of them knowing full well that his intentions were nefarious, and that he was lying to her face must have been deeply disturbing to a HoS who, in the end, is an ermine-trimmed rubber stamp, as was so horribly demonstrated by Johnson and his coup-conspirators. Not surprised that she’s not feeling well.
OK, the common objection is that a Trump-like figure could be elected as HoS, but that would only give us the lack of safeguards that we now have, and an identical result.
S~*t ot bust, it’s surely worth a go?
Good point, Adrian.
Our politicians prefer a toothless head of state who does not try to limit their freedom of action.
Looking across those countries that do have a constitution it seems they got one through war or through a coup d’etat. I don’t much fancy a war – it would be one we lose or the (un)civil kind but the thought of a large oaken block and Boris does appeal.
Looking back over our history we seem to have skated a delicate path from absolute monarchy to our present rather muddled situation. By luck and diversions we have avoided facing the lack of a constitution and tbh needing one. Our govt always seems to have had something better to do – a war here – an industrial revolution there, an empire to build and lose.
But now we are like a family who’s children have left home – thrown back on our own resources and conflicts. We are starting to feel the need. The question is how to get them to signing up for a constitution. Such things seem born of governmental stress, not something a government would do soberly and advisedly or voluntarily even though they should.
I doubt we face war or a coup d’etat – yet. The conditions that initiate a constitution would I think require a long period of economic decline. A complete failure of our government to deliver. Perhaps a time will come when Boris – or successor – has to go cap in hand to the EMF. That looks a way off yet, but might be worth having a pro forma constitution on hand.