15th July 2022
There is no doubt that the deed was done.
The body politic, finding Boris Johnson repugnant, spat him out of the premiership.
His political collapse was remarkable.
Two-and-a-half years ago, he had the greatest prizes that our constitution can bestow.
He had a substantive majority from a general election – and so he could get his programme through the House of Commons.
He had a mandate for a manifesto – and so he could also get his programme through the House of Lords without rejection or delay.
He could handpick his cabinet – without having to accommodate major party rivals, for he then had none.
He could handpick his Number 10 staff – including appointing controversial figures.
And circumstances and events were also favourable for him politically.
He had “got Brexit done” – or at least he had done to the (then) satisfaction of his party and the electorate.
Covid, and then Ukraine, provided unifying issues on which the country would look to the Prime Minister for leadership.
He even had the benefit of being Prime Minister during the Platinum Jubilee.
(Can you imagine what, say, Benjamin Disraeli would have done with that.)
Yet Johnson spaffed it all away.
And he lost power before the new parliament was even halfway through.
It is an astonishing political collapse.
It is difficult to think of a precedent – not even Anthony Eden’s failed premiership compares.
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But.
What, if anything, does this tell us about the constitution – and about whether we need a codified (or “written”) constitution.
(Yes, we all know the constitution is already largely written down, though just not in one place – but this is the phraseology we have to work with in this debate.)
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On one hand, the swift ejection of Johnson from the gut of the polity shows that something is working.
This is especially so when you realise he did not lose any formal vote, and that he recently won a vote of confidence from his own parliamentary party.
A more formal position for the Prime Minister may have meant we would have had to suffer Johnson for a fixed term – as codes can fortify as well as restrain.
In the United Kingdom, the office of the Prime Minister has little formal recognition, and it has few mentions in statute.
It rests on the twin stools of the royal prerogative and the supremacy of parliament – and when a Prime Minister loses the actual (if not formal) confidence of their cabinet and/or their parliamentary party, they become politically weak very quickly.
And as this blog has frequently mentioned: every Prime Minister since 1974 has either gained power or lost power between general elections – and, in the cases of May and now Johnson, both
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On the other hand, we come to one of the most wonderful phrases used in politics.
“We should not be complacent.”
What is wonderful about this phrase is that nobody would ever say sincerely “we should be complacent.”
No one yells, “yay, complacency!”
But complacency can be a state of mind, even if it is not admitted.
And there is force in the point that with Johnson we were lucky he was a buffoon.
The reason for his departure from the premiership was not policy.
It was not his constitutional trespasses and subversions.
And it was not any of his various forms of unlawful behaviour.
The reason for his departure was his personal failings.
A Boris Johnson clone, stripped of the personal failings, but with the same policy (or lack of policy), the same contempt and disdain for constitutional norms, and the same mix of casual and directed unlawfulness, would still be in power.
We were lucky Johnson was a charlatan and a fool, but what if we were to have a fanatic and a knave?
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The leading public law academic Mark Elliott has asked the question about whether recent events show the need for a written constitution on his outstanding blog.
My view is that this is not an easy question to answer.
There will be those who will say – as a reflex – that “this shows the need for a written constitution”.
One suspects that this is what they would say in any conceivable situation.
But those with the opposite reflex need to reflect and re-consider – even if they re-adopt the same view.
The decline and fall of Boris Johnson’s empire was an extraordinary event.
But the lessons of extraordinary events are often not immediately obvious.
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I don’t think it shows a need for a written constitution: but it does show the need for a republic: that so many people were wanting to activate the undemocratic parts of the constitution against the democratically chosen (however poorly) leader is worrying: at least in a republic the public could have had a chance to pass comment on the rule keepers’ judgement as well as on the executive politician.
In what way do you suggest that the relevant parts of the constitution are undemocratic?
They are not undemocratic just because they are decided by the queen: the rules are quite clear on that.
Having the constitution written down and therefore in one place would seem to be a fairly decent argument even those against such a concept might be OK with. And would it be so bad if we did?
You mean like this?
https://davidallengreen.com/2021/03/you-say-you-want-a-written-constitution-here-are-four-online-places-where-it-is-already-written-down/
“The reason for his departure was his personal failings.”
Maybe but I think it’s interesting that the thing that finally did for De Pfeffel wasn’t his lies to the public or the law breaking or the extra marital affairs or the prorogation of parliament or the financial irregularities or all the other misdemeanours but a combination of lies to his own MP’s about the Pincher affair coupled with the fact that he knowingly appointed to the pastoral role of Deputy Chief Whip a man wholly unsuited to the position.
So you could argue that what really did for De Pfeffel was that he sufficiently p*ssed off his own back benchers. He did do a whole slew of terrible things to other people with the tacit consent of his MP’s but once he did something that adversely affected “them personally now” his fate was sealed.
A very good point. As is usually the case with the Tories (though common to all MPs) self-interest and venality is the primary consideration. I know God loves a sinner who finally repents, but the scale and hypocrisy of this Damascene conversion is repugnant.
No-one has repented! It’s all just show.
I wonder who those in favour of a written constitution think is going to write it. I certainly don’t want one written by the current bunch of right wing extremists.
Traditionally this would be done by some kind of constitutional convention, or at least some democratically elected body requiring super-majorities.
Indeed. In practice, however, that would only need the Conservative & Labour parties, representing 75% of cast votes in 2019, to agree. A bad scenario has them cooking up a sweetheart constitution which enshrines First Past the Post and locks electoral reform behind a barrier of two-thirds of MPs. At that point, a hypothetical pro-PR party then has to win 436+ seats, not just 326.
Re. Constitution.
According to Privat Eye the monarchy now use their own legal and costitutional experts to advise them forgoing those in and used by, the government, this is as a result of the deeply embarrassing prorogue decision in 2019.
The Act to override the NIP has passed its second reading without any legal enhancement. This Act if it comes to fruition will according to most commentators break an international treaty and therefore international law.
What then of the constitution if those advising the monarchy advise it not to give this Act Royal Assent?
They ought not be embarrassed by the purported prorogation: it probably was the right course of action.
We don’t know what was said to the Queen, but if what was said was plausible, she was probably obliged to grant it.
Refusing would almost certainly have caused a constitutional crisis: “Queen blocks Brexit!!”
We might reasonably suppose that she predicted that it would be successfully challenged in which case, what she actually did was to hand the power of the nation to all the MPs with the gumption to recognise that the prorogation couldn’t possibly stand.
I don’t know what the rules are in parliament if the government entirely fails to turn up, but I should think they could pass a motion to deal with it.
Unfortunately, not a single MP had the nous, so that was an opportunity missed.
I don’t know why it should be the Queen’s duty to prevent the government from breaking the law: doesn’t she have a police service for that purpose?
Some might suggest that the government has a duty to not break international law, and if they neglect that duty, then that may be a criminal offence.
William Whitelaw, late Conservative Party grandee: “Labour has been going round the country stirring up complacency.”
> … going round the country stirring up complacency.
I believe the phrase Willie Whitelaw used was
“…. stirring up apathy”.
https://en.wikipedia.org/wiki/William_Whitelaw,_1st_Viscount_Whitelaw#In_opposition,_1974%E2%80%931979
The damage that Trump and Boris have done is only starting to come out. I believe they and their apparatchiks have been aspiring to mirror Victor Orbán’s nefarious achievements in Hungary since 2010. Their somewhat clumsy efforts have, however, exposed a road map to totalitarianism that others can follow. The republicans and Tories certainly contain those politically motivated to achieve this, if they can grab the reins of power. The democratic and institutional protections that are so lauded by UK and US have not worked and the vulnerable underbelly of our political systems are highly exposed. I don’t know whether a codified constitution is required in our case, but I do feel that the protections we imagine to be there are woefully inadequate when facing this existential threat.
I’m from a country (the Netherlands) that has a written constitution, but also lots and lots of unwritten constitutional conventions. Based on observing the Netherlands and the UK, I’d say that the benefit of a written constitution isn’t that it avoids uncertainty, but that it gives you a way to resolve the uncertainty going forward.
If you’re wondering whether Boris really resigned and, if so, from what, it’s already too late. But what you can do is enact a Prime Ministerial Resignations Act which sets out the rules, and which will govern this issue going forward.
For that you need a constitution that is written, but it doesn’t have to be gathered together in one place. It does, however, need to be sufficiently high in rank relative to ordinary statutes and other things controlled by politicians that it is unlikely that the politicians would ignore it the next time there’s a crisis. (Which was the problem with the Fixed-Term Parliaments Act, which didn’t fix anything because it wasn’t superior in rank to ordinary legislation.)
That’s very interesting but I am still troubled by the point raised by Ian+Kay as to who would actually write a constitution? Who would supervise the composers and who would supervise the supervisors?
After a quick glance at the history of the Dutch constitution I am not sure it is all that different. It is simply that what there is is all in one place. 1815-present is in many ways a faster version of Britain 1500-present (or could argue 1215-present). 1689 Bill of rights set out the constitutional monarchy and settled once and for all the supremacy of parliament. Habeus Corpus and other individual protections mostly already existed. The Crowns power was whittled down to its current status pretty much by Victoria. Suffrage was expanded more or less around the same dates as the Netherlands.
Interestingly the Dutch courts do not rule on constitutional issues which are the sole remit of parliament – in the UK as in the US citizens can challenge in court both the government and the House. And it seems that disputes such as the current Boris PM one are dealt with by convention.
Remind me again why the Dutch version is better ;-)
I think you’re replying to Martin Holterman, not me.
Whether or not the constitution is codified in a single document does not trouble me greatly, but we clearly need fundamental reforms of how we elect our representatives and better defined and executed checks and balances on the limits of the power of the Executive. Yes, Johnson’s miserable administration has imploded, as it deserved to do and we have emerged, but by no means unscathed and some glaring vulnerabilities have been exposed, particularly with regard to the sovereign / head of state. Timorous, tired, old, and because she has been on the throne for seventy years, so she is even more terrified of making an “error” at this late stage in her reign. She was bamboozled over the prorogation. Only a private individual taking a case to the Supreme Court scotched that ruse. Would she have stood up to Johnson if he had sought a GE, or even refused to resign (he still hasn’t)? That we have a second unelected Chamber, which still consists of a number of hereditaries and clergymen “by right” and is second only in size to that of China, makes us a laughing stock as a modern polity. The “Honours” patronage system is even more corrupt than it was in the 18th century and would make Maundy Gregory blush. FPTP as a voting method we share with that other beacon of democracy, Belarus. In the 21st century we should no longer tolerate pageantry masquerading as democratic process and the ridiculous claim to be the “mother of parliaments”. That has always been a lie. However, I believe we have much further to fall before we reach the nadir. The election of any of the top four Tory candidates may accelerate the process to terminal velocity.
Excellent piece with which I agree.
It seems to me that actually writing down all the important procedural and ethical rules for the governance of our country, in one place where everyone can see them, in a way that could be enforced, would be a good thing.
But a written constitution is not a panacea and cannot cater for every conceivable situation.
As you’ve frequently said, what you need more than anything is politicians with an attitude of constitutionality – basic standards and ideals of behaviour which are consistent with an overriding rule of law or ethics. You can’t legislate easily for ethics, but you can provide for consequences if standards are not met.
At one level, a constitution is law – “a system of rules which a particular community recognises as regulating the actions of its members” – and should follow Tom Bingham’s principles. In particular, it should be accessible, intelligible, and predictable; not ordinarily resolved by discretion; should apply equally to all, except when objective differences justify differentiation; and powers must be exercised in good faith.
Do we have all of that under the present constitutional settlement?
What is wonderful about this phrase is that nobody would ever say sincerely “we should be complacent.”
Au contraire, I would argue that this is precisely the government’s position on Covid.
One of my colleagues from my time serving in Local Government (it’s not a prison sentence; it just feels like it) had, among numerous amusing expressions,
“Apathy Rules! … So what!”
The cynic in me believes that the reason that governments get away with so much is because they rely on the apathy of their citizens. Well, that and a carefully crafted structure that makes it so hard to upset the status quo they have established.
On a slight tangent, I would be interested in your views on the process for choosing the new PM. On one level, as a parliamentary democracy it is well known that PMs can change midway through the electoral cycle and no new general election is required. Where the new PM is chosen by an MP vote, that is arguably quite democratic, as the electors have themselves been elected. Similar if it’s done by consensus among MPs. Choosing a party leader by member election whilst in opposition is also very democratic within the party. The choice is then (indirectly) put to the country through a general election. It seems to me however that having a party vote where the winner becomes PM is deeply undemocratic, as the PM is directly chosen by a self-selecting group of party members.
https://twitter.com/MattCartoonist/status/1547625906369208327/photo/1
Very good distinction. I would add that taking 2-3 months to replace a PM is also wrong. It should just be an MP vote. The party vote is an awkward compromise between a full blown primary system and MP only. As Lab found out mimicking primaries is a terrible idea unless you have a national system with some controls to stop tactical and multiple voting across parties
I am not at all clear as to why a codified constitution would result, as you’ve suggested in a number of articles, in a fixed Prime Ministerial term – why there would be a pressing need to introduce a wholly new conditional concept that isn’t wanted and wouldn’t be beneficial.
After all, a Prime Minister is not a President. Right now, Italy – one of the 180-odd countries with codified constitutions – is, like the UK, facing a situation where the PM may or may not be resigning because he appears not to have the confidence of Parliament (as we’d say in this country, I don’t know the Italian terminology). Many other countries around the world have Prime Ministerial terms that are flexible, dependent on confidence in the relevant house. Many, too, have relatively flexible election timetables that – like the UK – allow a further means to eject a problematic Head of Government.
Perhaps, rather than an argument for or against codification, this is an argument for ensuring power is divided between the Heads of Government and State – either as a constitutional monarchy, or a semi-presidential republic. There are often comparisons between Johnson and Trump in their unwillingness to leave office, but an advantage that the UK has clearly had is that the ability of a British PM to cling on is far more heavily restricted. However, that isn’t because of our uncodified constitution; it’s because the UK PM is reliant on Parliament and, ultimately, the Crown.
Just as a similarly-minded Prime Minister of, say, Spain would be restricted by the confidence of Parliament (specifically, I believe, through its representative, the President of the Congress) and the Crown. The Spanish constitution deals with the appointment and dismissal of Prime Ministers perfectly well. It gives no support to PMs who would like to stick around indefinitely.
Of course, this is no guarantee against despotism. Previous articles have correctly pointed to the Russian constitution as an example of how a liberal democratic codified constitution can be brushed aside by a ruler who has sufficient force, and whose opponents are sufficiently weak. There can never be any legal shield against tyranny that is completely watertight, and all constitutions of all kinds require public legitimacy and public support if they are to defeat coups and dictatorships. That takes effort, vigilance and a considerable amount of time to build.
But at least a codified constitution gives a democracy the weapons to resist would-be despots. A shield of variable strength, that needs constant maintenance, is still better than no shield at all. It is better than merely sitting and hoping.
And although the confidence of Parliament may be an effective shield against a PM who needs to be removed, and the limitations on the PM’s power may be an effective shield against one individual digging in by force, there is much more to the constitution than the appointment and dismissal of governments.
Johnson has trampled over many a convention, conventions protected only by the presumption that the PM will not be too much of a wrong’un. Parliament supported or at least didn’t prevent those acts. A Parliament that is even more docile, tamed by the removal of rights that can empower opposition, could be controlled indefinitely by a future Johnson.
After all, the 2019 Conservative manifesto explicitly promised to limit democratic rights, limit human rights, limit the power of judges. Our uncodified constitution merely presumes that a government would be too decent to allow such things to happen. We are essentially defenceless against even the most basic knavery.
The argument surely is not about whether it is written (on parchment, on vellum, or whatever) but how difficult it is to change. The UK constitution is arguably too easy to change (by a majority of 1 vote in the HoC). The US constitution is surely too difficult to change. Isn’t there a happy medium?
I wonder if a written constitution is not merely the wrong answer but, partly, distracts us from the right question. We could codify all the existing laws which comprise our constitution. We could even elevate constitutional convention to the level of statute, or enumerate and limit, by statute, perogative powers. However, after that Herculean effort you would be left with the stark reality that parliamentary sovereginity is the fountainhead of all power under our constitution. What the Johnson Government has illustrated, to my mind, more than anything else, is that where a doctrinaire political party (elected on a c. 40% share of the popular vote) holds the reins of power in Parliament (and thus the Executive and thus the perogative power) and is fully alive to the potential of its power to dillute (or in some cases enitrely remove) the checks and balances parliament has previously permitted to exist: there is precious little to stop them from doing it until the next General Election. They are the manifestation of Lord Hailsham’s “elective dictatorship”. Why has it happened now, and not before? There is plainly something to be said for Lord Hennessy’s view that we ran out of ‘good chaps’. But it is wrong to view either the constitution or politics as static. Historically, and controversially, the House of Lords was a bulwark against “elective dictatorship”, as was the greater existence of a body of independently minded MP’s (less wedded to party or intra-party groupings). It was also less likely to manifest during periods of coalition government or broad cross-party consensus which accounts for much of the C20th (at least until 1979). There is another factor. For good or ill, membership of the EU, created new checks and balances, and save the nuclear option of Brexit, ones which were separate from the power of parliament. All of those historic checks and balances are gone now, and, if a meaningful voice within the Conservative Party has its way, the ECtHR will be gone soon too. To my mind, the question this period poses is not so much whether the UK should codify its current constitution but whether it needs a new consitution which embeds some form of inalienable check on the power of parliament and the state (e.g. but not exclusively, enumerated rights which can only be amended or removed by plebiscite). I don’t know if that is what people want, but I do know that what is special about the US Constitution, Irish Constitution, and Canadian Constitution (all common law tradition countries) is not that they are written – it is what they say. Particularly, it is what they about the allocatation of power.
“A Boris Johnson clone, stripped of the personal failings… would still be in power.
We were lucky Johnson was a charlatan and a fool, but what if we were to have a fanatic and a knave?”
I think this is the key part – consider that oxymoronic honest and capable “fanatic and knave” executing the same callous policies and disregard for international law. If those policies were popular and what the country had voted for them to implement, then any constitution, written or unwritten, would be working exactly as intended by keeping them in power.
Without being too Seymour Skinner, sometimes it’s the people who are wrong!
We’ve already had that.
When Tony Blair sided with George W. Bush in arguing that UN Resolution 1441 was sufficient to authorise an armed invasion of Iraq, he executed callous policies with complete disregard for both international law and the evidence presented to him by his own Intelligence Communities.
When challenged, years later, on why he pushed so hard for the invasion – given the complete lack of supporting evidence – the best argument he could muster (I paraphrase) was that God told him to do it.
So to answer your question: “what if we were to have a fanatic and a knave?”, the answer is: we might very well find that we would be in armed conflict with a soverign nation that posed no threat to us, on a premise that was entirely unfounded in both the facts and the law. We might find that we lost dozens of British lives on the basis of a lie.
We might also find that parliament was either wholly inadequate to safeguard us against that outcome (at best) or entirely complicit (at worst).
We might find that the checks and balances that we hold dear are meaningless in the face of a Prime Minister who sets out to lie to the House and the British people.
We might find that innocent people may die as a result.
And worse still, we may find that the actions of that one madman will stain our reputation for decades to come, might result in similarly fanatic people that hold different views finding the UK to be a worthy or justifiable target for violence of their own design.
And so we might find that the cycle of violence continues.
Having endured John Finnis’s lectures on the Constitution of Antigua as an undergraduate, I share the scepticism about written constitutions but what we have seen recently is about the failure of a system that attributes good intentions to its Leaders and their expected good behaviour.
Our PM has disappointed in this respect.
There is also the corollary belief that regulators like the Speaker and the Ethics advisors will also behave properly; for the most part they have not only behaved properly but have gone to the full extent of giving our PM the benefit of any available doubt.
If Parliament is sovereign and in some sense (even post Supreme Court) a Court, shouldn’t the determination of all mechanisms of complaint ultimately reside there with the Liaison Committee?
Whilst the PM will argue that as long as there is confidence in his/her Government, s/he should be answerable to no other authority, we need a mechanism in which Parliament rather the PM is Judge and Jury of an ethical issue or a gross issue of conflict and is given a basis on which it can trigger a Vote of No Confidence of its own volition.
Even this modest approach, would probably result in a great deal of effort from No10 to ensure the ‘right’ appointment as SC Chairs but backbench MPs are protective of these appointments.
At the same time, enhancing SC rights to production of documents and the right to subpoena witnesses, would do no harm at all, in giving backbench MPs a sense of purpose.
We have had a weak Speaker and a weak Ethics Advisor who have bent over backwards to give the PM the benefit of the doubt as you so generously put it. But there is a nonsense if the Speaker must admonish and ban an MP from the Chamber for stating that the PM has lied, which he has manifestly done as everyone including the Speaker knows, because of of Parliamentary “convention”, whilst failing to insist that the PM correct his habitual practice of “misleading the house”. The Ethics Advisor is not only toothless, but the appointee of the PM, who remains the author, judge, jury and instigator of any enquiry. Would that we could appoint a couple of experienced female Primary School teachers – they can spot a lie and a wrong-‘un at 100 paces.
But more seriously I believe the rot begins with a Party that can win a huge majority with a minority of the FPTP vote and enact its ideological driven agenda without check. Some form of PR and a coalition government is far more representative of the voters and would prevent this sort of mad lurch from one political extremity to another. It would also help prevent the gerrymandering undertaken here but much more obviously deployed by the Republicans in the USA where “across the aisle” politics is now almost non-existent.
The only advantage of a written constitution is that it is written down in one place.
What the UK lacks is a means of enforcing it. In Ireland, as I understand it, the major function of the President is actually to ensure the constitution is complied with. Her Maj singularly fails in this regard so we are reliant on the Gina Millers to actually originate court action because they have sufficient drive and finance to do so. But what if Gina Miller were no longer with us?
In the face of the uselessness of the current speaker we need a post (say a ‘Parliamentary President’) who can originate legal action when procedures, conventions and indeed laws are ignored.
In short we need Parliament to be not quite so supreme…
If we are to have a written constitution might I propose Thomas (Book of Common Prayer) Cranmer as the author to ensure clarity, simplicity and elegance?
“It rests on the twin stools of the royal prerogative and the supremacy of parliament – and when a Prime Minister loses the actual (if not formal) confidence of their cabinet and/or their parliamentary party, they become politically weak very quickly.”
Your chosen turn of phrase makes the latest cover of “Private Eye” all the more poignant.
“What do we do about political leaders who behave in ways we don’t like?”
A written constitution is not really the answer. (It didn’t stop January 6 2021 in the USA.)
A more interesting direction for me is, how do we have leaders and parties and a politics that aren’t so polarised?
Can technology help? Political systems were probably devised for a world of town hall meetings and 19th century technologies. Isn’t something more sophisticated possible nowadays?
Certainly the Northern Ireland Assembly has attempted more sophisticated voting and representation systems. Is more possible in other countries that now seem just as polarised?
Ulster is hardly a role model. The takeaway is that no matter what electoral system you use, if voters are polarized the result will be polarized.
Quite right on no need for a constitution. For all the pros, look at the cons of the US system (and institutions in Europe).
As with prorogation, Boris brought the country close to a crisis but the system worked. Had he tried to call an election, the Queen would have had to decide whether to overrule him as per the George VI memo. In doing so she might well have triggered a call for an updated formalization of the criteria for a decision and a review of her role. That might have led to some formalization of the rules on party and House votes. Perhaps that would also make both parties put an emergency provision into leadership contests so that a new PM could be installed in days, not weeks or months.
In my opinion, the most important thing is that citizens of a country should feel ownership of the country. How can they feel that if a ruling caste produces arcane rules apparently out of a hat to disqualify the people’s ownership when the caste’s interests are threatened? Or chooses not to implement justice lest it create a vista that the establishment might find appalling?
The only way for citizens to feel ownership is to have a written constitution, to be interpreted by learned judges who have sworn to uphold it honourably and to be modified by the citizens in a referendum if they are dissatisfied by the courts’ interpretation.
Arcane rules out of a hat? Those rules have been existence for a long time and have been used with every prime minister from Thatcher onwards. The same people who complain now about Boris being forced out cheered when May was forced out. I suspect if aa constitution said the party could force out the PM you would be making the same complaint about “the people”
Mark Elliots blog at one point says this:
“It is always open to Parliament itself — as distinct from the Prime Minister’s political party — to vote that it has no confidence in the Prime Minister. If such a vote is held, formally demonstrating that the Prime Minister no longer has the confidence of the House of Commons, the Prime Minister is constitutionally required to resign. If he or she refuses to do so, the Monarch is constitutionally permitted — and required — to dismiss the Prime Minister. ”
Except that Johnson was able to prevent Labour holding that vote of confidence in him. He insisted, wrongly I believe, that the only form that was possible was one of no conficence in the Government. However he got his way and the Labour motion wasn’t given time.
This is an example of the wiggle room the PM has to get around our uncodified constitution. The problem is that because our constitution is uncodified, it takes reference to constitutional experts to determine what can and can’t be done. They won’t all agree and then possibly it takes recourse to the courts to impose consequences (as with the illegal proroguation). A codified constitution would clarify exactly what should be done, everyone involved would know this and there would be no uncertainty. Even someone like Johnson would find it hard to resist and force the sovereign to act.
We had a political crisis, things were resolved and people say that shows the constitution works. I don’t think the constitution worked at all, it didn’t do anything. What worked was the overwhelming pressure on Johnson from his own ministers. Nothing constitutional about that, only politics. The only constitutional aspect was whether Johnson could stay on as PM in the interim and he managed to get his way on that by moving very fast to get a new set of ministers in place before announcing his resignation as party leader.
I’m coming to this from a slightly different perspective. For instance, the key concept of an ISMS (Information Security Management System) is that you should have a “one-stop shop” for all the relevant documentation: BYOD policy, business continuity plan, etc. That seems preferable to having the same information spread across 4 different places (as per your other blog post).
Also, your previous blog post explained why the Lascelles Principles might no longer apply. I think a good analogy here is a fire safety policy. In some organisations, this is simple: if the fire alarm goes off, everyone evacuates the building. In other organisations, it’s more complex, e.g. a hospital might ask staff to close the fireproof doors and wait with patients, rather than moving people outside in the middle of open heart surgery. Whatever the rules are, it’s good to establish them in advance, rather than waiting until the building’s on fire and then trying to figure something out on the fly.
NB If you’re talking about an ISMS or a QMS (Quality Management System), nothing is carved in stone. Typically there’s a documented procedure for creating/updating any document (including itself), which just requires certain people to approve it (e.g. the current owner). Some documents might stay the same for years, while others might be updated on a monthly basis.
In a constitutional context, I understand the concerns that a bad government could establish rules I don’t personally like. However, I still think it would be useful to have that information clearly available, and then a later government can revoke the bad rules.
What a fascinating read this has all been, even for a non-lawyer. As a layman, the questions I want to see answered are:
1. Why can’t I easily read and understand our constitution?
2. What authority does our constitution have, and how is it enforced?
3. How does our constitution get changed?
4. Who is accountable for what is in it?
5. Does it cover all it needs to cover?
6. Is what is in it fair/sensible/coherent/fit for purpose?
7. Do I like what’s in it?
Or am I asking for utopia?
Any answer would be bound to change over time and wouldn’t suit everyone anyway, which is why the subject is so difficult. Your utopia is probably different from mine and your utopia might well be different 20 years from now.
The Bill of Rights, the two SCOTUK decisions on the Gina Miller cases on prerogative.
Parliament
Yes. Many “rights” dont need to be in a constitution. They can are are legislated. That makes them relevant and easy to add to or update. Abortion is a good example.
Yes. It works. Parliament can legislate changes if needed. Of course if you want fundamental change such as moving to a republic then the answer would be different.
Up to you.
The real question is how much you want a US model where SCOTUS essentially legislates, even when being originalist, or a Latin American style where every conceivable “right” and situation is enumerated with predictable results.
Essentially the UK model reduces the need to go to court on everything but as Gina Miller showed, that may also be because traditionally individuals and interest groups have not litigated on constitutional issues unlike in the US. That may change overtime.