Author: David Allen Green

The “written constitution” debate after Boris Johnson

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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Ministers are now just not turning up to things

14th July 2022

One of the current leadership contenders for the governing party said – aloud – that something or other “needs to become a little less about the leader and a lot more about the ship”.

One ship that comes to mind given the dysfunctional antics of the governing party is the (literally) fabulous Ship of Fools.

But from the perspective of Whitehall, the more obvious ship is the Mary Celeste.

Last week – only last week – we had mass ministerial resignations that left at least one government department with no ministers in the House of Commons.

Whether government departments actually require ministers to be in place absurdly became a matter of practical concern, rather than for academic speculation.

But now, even the ministers who are in place are not turning up to having their policies scrutinised.

Yesterday:

And today:

So, if you were to wonder whether any specific minister has resigned, the only answer is that attributed to Dorothy Parker on the death of Calvin Coolidge:

“How can they tell?”

Current ministers just do not seem to care any more.

And as this blog as recently averred, infantile “culture war” politics are not about policy, but a substitute for policy.

They are easy things for the media to ask about, and easy things for certain politicians to resort to, and are thereby useful for both the media and the politicians as an alternative to discussing anything actually useful.

And such “culture war” politics seem not to be “cutting through”:

It appears that the (supposed) wedge issues were Westminster bubbles, all along.

What a surprise.

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And so we have this general emptiness where policy – and politicians – should be.

This void is not because of any lack of issues that require urgent policy attention.

Such issues are legion.

It is because there is a deepening and widening disconnect between politics and policy.

Like Benjamin Disraeli’s “two nations”:

“between whom there is no intercourse and no sympathy; who are as ignorant of each other’s habits, thoughts, and feelings, as if they were dwellers in different zones, or inhabitants of different planets; who are formed by a different breeding, are fed by a different food, are ordered by different manners, and are not governed by the same laws.”

Disraeli posited that this described the rich and the poor; but it could now describe the gap between those who dominate politics and the media and those who do not.

The problem is that those concerned with politics and the media are not interested in the grunting, gruntful hard work of actual policy-making.

The concerns of those charged with making policy are not with the slog of policy formulation and implementation.

We had until recently photographs of packed cabinet meetings, with ministers and others “who attend”:

But from a policy perspective, that same table may as well be empty:

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We are now half-way through this Parliament, with a government with a substantial majority, and we are reduced to empty departments and absentee ministers.

And – given the shallow nonsense of the current leadership contenders about tax-and-spending as well as culture wars – there is little prospect of a new Prime Minister changing the course of the ship of state, so as to close the gap between politics and policy.

In the words of the eminent jurist Marwood:

“We are drifting into the arena of the unwell. Making an enemy of our own future.”

Brace, brace.

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How the Government refusing a Confidence Vote subverts our Constitution

13th July 2022

The essence of our parliamentary democracy is confidence – that is its lifeblood, its electricity.

The United Kingdom is not a direct democracy, and it is not an absolute monarchy.

The government instead rests on having the confidence of the House of Commons.

That is: the confidence of the majority of elected Members of Parliament.

Without that confidence, a new government must be formed or there must be a general election.

In this way, the test of confidence of the House of Commons is the most important political test for the government in our constitution.

This confidence is of more immediate import than, say, the results of a general election – for a government will only resign after an adverse general election once it realises it does not also have the confidence of the House of Commons.

Confidence is therefore fundamental, crucial.

The test of confidence thereby provides both the authority and the legitimacy of our government in this parliamentary system.

And because the test of confidence is so important, then the application of that test must take priority over any other parliamentary business.

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In the last week the governing party of the United Kingdom has imploded.

The Prime Minister announced his impending resignation after dozens of ministers resigned, leaving at least one department without a minster.

The governing party is now seeking a new leader, as we have the public spectacle of ministers campaigning against each other, and even attacking each other publicly.

Instead of collective cabinet responsibility, we have a collective cabinet free-for-all.

The government of the United Kingdom is in a dreadful state.

And as this government – as with any other government of the United Kingdom – derives its authority and legitimacy from having the confidence of the House of Commons – then whether the government has the confidence of the House of Commons must be tested.

For, if that confidence is not to be tested in this current remarkable situation, when should it be tested?

Yet the current government is refusing to allow a confidence vote in the House of Commons.

The pretext for this refusal – though not a good reason – is that the wording of the confidence motion, which refers to the current Prime Minister as well as the government is not within the convention for such votes.

But this excuse is wrong both as a matter of precedent and as a matter of principle.

Previous confidence motions have expressly mentioned the Prime Minister.

And as the function of such votes is so that the authority and legitimacy of the government within a parliamentary democracy can be affirmed, it is not for the government to refuse such a vote.

Either parliament, through its elected representatives, is supreme or it is not.

Either the government of the day has the confidence of a majority of Members of Parliament, or it does not.

There is no doubt that a debate and a vote on a motion of confidence is unwelcome not only to the current (though departing) Prime Minister and to the governing party.

There is also no doubt that in political reality the governing party has no confidence in the current Prime Minister and thereby in how this government is currently constituted.

But these are not good reasons to deny a vote – indeed these are reasons why such a vote should take place.

Once a new Prime Minister is in place then it is likely that the newly constituted government will allow the confidence of the House of Commons to be tested.

And so, in a way, the practical effect of a vote of no confidence is being put in place, but without an actual vote.

It can thereby be argued that having such a vote is superfluous.

But.

The problem here is not that the government will not be reconstituted when it needs to be reconstituted, for that is happening.

The problem is that it should never be for the government of the day to gainsay when votes of confidence are to take place and not to take place.

It is not good enough for ministers to say that such votes are not necessary, for it is not for ministers to make that decision.

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There is no doubt that the majority of Members of Parliament have lost confidence in the currently constituted government.

That is as plain as a pikestaff.

There is also no doubt that the government and the governing party have lost confidence in themselves.

And by refusing to allow a vote of confidence, they are subverting what gives a government its authority and legitimacy in our parliamentary system.

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My new FT Video: constitutionalism and the reversal of Roe v Wade

12th July 2022

This blog is written from a liberal constitutionalist perspective.

But like “country” and “western”, liberalism and constitutionalism are not the same thing, even though the coupling works well in practice.

Take for example the abortion issue.

From a liberal perspective, the issue is about who makes the decision.

The decision here being whether a woman can have access to a safe abortion or whether she should be forced to continue with an unwanted pregnancy.

The liberal will consider that the decision – at least before late in the pregnancy – should be that of the woman, in consultation with her doctors.

Others, however, will insist that the decision should absolutely not be that of the woman concerned, but should be decided on her behalf by a legislature.

But.

Believing that the decision should be that of the woman concerned does not, in and of itself, tell you how the constitutional and legal system should provide for that right.

And one can be a conservative constitutionalist as well as a liberal constitutionalist, as constitutionalism is about believing there should be rules and principles that provide the parameters of political and legal action.

In the United Kingdom – and now including Northern Ireland – the right to an abortion is not a constitutional right, or it is not usually considered as such.

It is a legal right provided for by statute.

In the United States it was not possible to enact similar legislation that would cover all Americans, not least because of the disproportionate power many conservative but less populous states have in the federal legislature.

So the route taken by those in favour of a right to abortion was to litigate so that the United Supreme Court found that the right to an abortion was a constitutional right.

And the Supreme Court found that there was such a right in 1973.

Then, a couple of weeks or so ago, a differently constituted Supreme Court found there was not such a right.

Over at the Financial Times I have done a video setting out this constitutional journey.

The video is also on YouTube:

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Many of you will have strong opinions about abortion – I certainly do – but the focus of this blog and and any comments below is on how the issue is or should be dealt with as a matter of law.

The United States took a constitutionalist and judicial approach, not least because there was no other United States-wide approach that would work.

But what one Supreme Court can give, another Supreme Court can take away.

And so it was always a precarious basis for such an important right.

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From 1995 to 2022: governing party leadership contests in perspective

11th July 2022

In late June/early July 1995 I was spending some time in Boulogne.

It was the time of the Conservative leadership contest between John Major and John Redwood, and so every day I would go to a café that sold English newspapers to find out what had happened one day or sometimes two days before.

And apart from some occasional radio news, that was it for that day: a few minutes for information about the important matter of who would become Prime Minister and thereby shape the United Kingdom’s relationship with the (then new) European Union.

In 2022 the significance of the current contest is in one way the same: the question of who will be Prime Minister as well as leader of the governing Conservative Party.

But it is very different – not least in the deluge of information, all day, every day, about the candidates.

The biggest difference is that all the current candidates are now on the Redwood ‘side’ of the matter of Europe.

Indeed, in this post-Brexit period, all realistic Conservative leadership contenders have to say things that would make John Major wince and John Redwood clap and cheer.

The question of the leadership of the governing Conservative party is no longer also a question about the future of the United Kingdom and Europe.

That question has been answered – and the answer has also been adopted by the main opposition Labour party.

The division between Major and Redwood in 1995 is not even a division between the main two political parties.

Indeed, there seems very little policy difference between the current candidates for leadership and thereby the premiership.

This is why they are seeking to outbid each other in fantastical demands for tax cuts and infantile pandering to horrible culture wars.

These are things are what you talk about when you do not want to engage in hard policy.

They are not about policy, but a lack of policy.

But another thing the 1995 and 2022 leadership contests do have in common: both were about two years from the next general election.

Given the recent by-election defeats the current governing party looks as if it is heading for a heavy defeat, just as it was to in 1997.

If so, the current contest is for the prize of leading the Conservatives into that defeat – and without enough time to put in place an entirely new policy agenda, even if the successful candidate wanted to do so, which none of the candidates do.

Of course, somehow, some of the candidates are even worse (from a liberal perspective) than others, and one or two a lot worse.

But there is little to separate them – so far – on overall policy.

This is perhaps not surprising: the departing Prime Minister Boris Johnson did not go because of policy – in contrast to say, Margaret Thatcher in 1990 where the Poll Tax and European policy were central to her removal.

And so: this is a leadership contest where the winning candidate is not likely to change policy and who is also likely to lose the governing party’s majority at the next election.

If you did not have the internet and twenty-first century communications, would you walk to a local café to follow what was happening for a day-to-day account?

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Has Johnson actually resigned? And, if so, can he renege on that resignation?

8th July 2022

The fact that people do not believe Boris Johnson has resigned – or believe he will reverse a resignation – speaks to the wariness many have about this particular cynical opportunistic politician.

And they are right to be wary.

This post – which follows a popular Twitter thread yesterday – sets out what appears to be the current position.

Put simply: the matter has been taken out of his hands.

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Has Johnson resigned?

Johnson holds two positions from which he can resign: the leader of the Conservative Party and Prime Minister.

Yesterday Johnson announced his resignation as party leader.

Here, yesterday’s speech from Johnson was significant.

True, he did not use the word ‘resign’.

But the R-word is not a magic word, and there was no formal reason why he had to utter it aloud for it to make all the difference.

What he did say was enough:

“It is clearly now the will of the parliamentary Conservative Party that there should be a new leader of that party and therefore a new prime minister.

“And I’ve agreed with Sir Graham Brady, the chairman of our backbench MPs, that the process of choosing that new leader should begin now and the timetable will be announced next week.

“And I’ve today appointed a Cabinet to serve, as I will, until a new leader is in place.”

The only meaning these words can have is that a new leader can now be put in place.

And the only way this can happen is for him to cease to be leader.

With his statement yesterday, Johnson – at a stroke – lost control of the process.

As and when the parliamentary Conservative party choose a new leader, that new leader will be invited by the Queen to form a new government.

Johnson does not need to do anything more.

He will cease to be Prime Minister by automatic operation of the constitution.

Under the current rules of his parliamentary party, he also cannot stand for election in the new contest.

All this means is that should now just a question of time before there is a new Prime Minister.

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Can he renege on his resignation?

One fear is that he may seek to renege on his resignation – to change his mind.

He can certainly purport to do that – and it is not impossible that he will try.

But.

It would not be a matter for him – it would be a matter for the 1922 Committee.

Again, the situation is no longer under his control.

For this to happen would require (a) for him to (purport) to (somehow) rescind his resignation and (b) that rescission to be accepted by the 1922 Committee.

There is perhaps a possibility that the 1922 Committee may agree to this, but that would be their collective decision, and not his.

And if the 1922 Committee did not agree to the rescission, then the process would continue, a new leader will be selected and asked to form a government, and Johnson will still cease to be Prime Minister.

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What if, what if?

Of course, there are various possible situations that could happen between now and Johnson ceasing to be Prime Minister.

The conflict with Russia could escalate; there could be a new pandemic, or a new wave of the current pandemic; the Queen may die; and so on.

Johnson may wish to contrive an emergency, or there may be a genuine emergency.

It may well be that a development is so immense that Johnson may say he should continue in office.

But.

In every conceivable scenario, we come back to the same point: it would not ultimately be a matter for him.

Yesterday he lost ultimate control of his political fate and there is no situation which means he regains that control.

It may be that Johnson hangs on, hoping something will turn up which will mean he can carry on – and this is plausible.

He is a cynical opportunist.

But, if that was to happen, it would require others to decide that to be the case, and not just him.

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Sooner rather than later?

There are strong – if not overwhelming – arguments that Johnson should go sooner rather than later.

This is a politician who cannot be trusted.

The highly important disclosure that Johnson met with a ‘former’ KGB spy as Foreign Secretary during a security crisis and without officials is just one of many reasons why he should no longer be Prime Minister.

However, the constitutional position is not straightforward.

There is no formal role of ‘acting’ Prime Minister – it is a binary position, either you are Prime Minister or you are not.

There is some precedent for someone to come in as a ‘caretaker’ – in 1834 the former Prime Minister the Duke of Wellington headed a caretaker ministry until the new Prime Minister Sir Robert Peel could return from abroad.

And there is one former Conservative Prime Minister still in parliament, Theresa May.

Imagine that.

Others have suggested that the current deputy Prime Minister Dominic Raab could be an interim Prime Minister.

In the meantime, there are rules and conventions that apply to lame duck Prime Ministers, which applied in the last days of the premierships of Gordon Brown, David Cameron and Theresa May.

Here see the commentary of the peerless Dr Catherine Haddon:

But merely me typing – and you reading – ‘rules and conventions’ in the context of the departing Prime Minister Boris Johnson make one realise their limits in this particular case.

That said: so far, one day later, it looks as if Johnson and those who have agreed to serve in his cabinet are abiding by those rules and conventions.

And it an inescapable fact that the Conservative Party do need to have a new leader – and some of the candidates are not the sort you would want to rush into premiership.

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Of piglets and grease

None of the above means that the ‘greased piglet’ will definitely now leave the premiership.

It just means that it is no longer solely the decision of Boris Johnson.

His cynical opportunism in and of itself will not be enough.

And it may well be that his cynical opportunistic mind is already moving on – and there will be personal advantage in him leaving the House with its (for him) irksome rules on financial disclosure and its (for him) dangerous committees investigating his conduct.

And any bad conduct now may also limit his last remaining source of patronage bounty – the resignation honours list.

Johnson is many things, but he is not stupid.

He is calculating.

You may recall that in 2019 many feared that he would breach the Benn Act and not ask for an Article 50 extension.

But, in the end, faced with an absolute obstacle, the bravado bullishness fell away – and the cynical opportunist adjusted to the situation.

And yesterday, he similarly did not push the situation so as to ‘fight on’.

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So: if others do provide him with even the possibility of staying on as Prime Minister, he may well seek to exploit that possibility.

But: it is no longer his own absolute choice.

His next cynical opportunities are now elsewhere.

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The resignation of Boris Johnson – and why that is not enough for good government to return

7th July 2022

Well.

This morning I was writing a Twitter thread on what would happen if all government minsters resigned.

For such a surreal thing to be of any practical concern, rather than for academic speculation, indicates that it has been an odd few days in the politics of the United Kingdom.

And now the current Prime Minister has announced his resignation.

He is not going immediately – but the process for a finding a new Conservative party leader will now start and it seems to me that Johnson cannot now do anything to stop that process.

Once that process produces a new leader, that leader will be invited to form a government by the Queen, and Johnson – by automatic operation of the constitution – will instantly cease to be Prime Minister.

He may go even sooner, with a ‘caretaker’ Prime Minister put in place until a new Conservative leader emerges.

Johnson may remain in office, but his announcement today means he has lost ultimate control of his political fate.

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His resignation shows the operation of another constitutional rule – perhaps the most fundamental constitutional rule of all.

That rule is that Hubris is usually followed by Nemesis.

Wise politicians know this – and so they run tight ships, knowing that the pull of the tides can result in capsizing or being wrecked.

Less wise politicians assume their moment of great power will last forever.

Johnson – a successful electoral politician – was brought down not by any great policy issue or national crisis.

From Partygate and the Owen Paterson affair, he and his circle made unforced error after unforced error.

He and his circle believed that they could casually defy rules and conventions.

And so the ship of state became a ship of fools.

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Johnson in December 2019 had the greatest prizes that the constitution of the United Kingdom can bestow on a Prime Minister.

He had won an emphatic general election victory – and so he had the “mandate” that meant he could translate his programme into practice without delays in the House of Lords.

And he had a substantial majority – of eighty – which meant he could get through the House of Commons legislation and revenue provisions without opposition.

He even had, with Covid and then Ukraine, two huge unifying issues for him to pose as a Churchillian leader.

Yet, two-and-a-half years later, he is resigning.

And the mandate and the majority have been wasted.

The latest Queen’s Speech was an embarrassing sequence of proposals, showing that the government had no direction.

And the one thing that Johnson and his government did do – Brexit with a withdrawal agreement – he was seeking to break.

Power without responsibility, as another Prime Minister once said in a different context.

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Brexit was begat by the Conservative and Unionist Party.

The 2016 referendum was an exercise in party management, and it was from that egg that Brexit first emerged.

After 2016 the Conservative and Unionist Party said Brexit should mean Brexit, and they campaigned on that basis.

And under Johnson, the Conservative and Unionist Party “got Brexit done”.

But Brexit, being ungrateful, is destroying the Conservatives and dismantling the Union.

The revolution is devouring its begetters.

It is a political morality tale.

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And so good bye then Boris Johnson, if not now but soon.

The curious thing is that he may not even be the worst of the post-2010 Prime Ministers.

It was David Cameron who risked the future of the country on a single turn of pitch-and-toss – and with no preparation for a Leave vote.

It was Theresa May who insisted that Brexit had to be done, at speed, with its ‘red lines’ that kept the United Kingdom outside the Single Market.

These macro political mistakes were profound.

And we now have the greatest political mess in living memory, if not modern history.

It is time for the excitement to die down, and for a return to the dull work of taking government seriously.

The ejection of the repugnant Johnson from the body politic is a necessary step towards such political good health – but it is not a sufficient one.

Let us hope that we have not left it too late for there to be a recovery.

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What if Boris Johnson refuses to resign?

6th July 2022

Since 2016 we have had in the United Kingdom a great deal of constitutional drama.

We have had a referendum; supreme court cases; departure from the European Union; a hung parliament; and prime ministers come and go.

This has been all very exciting – though, of course, constitutional affairs should not be exciting.

They should be dull.

This is because a constitution sets the parameters of everyday political action – the rules of the game – and if those parameters are being continuously tested and contested then that indicates all is not well with the polity.

But for all this drama, there has not yet been a constitutional crisis – close, but not quite.

Here ‘crisis’ means a serious situation, the outcome of which is not certain.

And ‘constitutional crisis’ means such a situation where there is the prospect of a constitutional tension hardening into a contradiction.

Since 2016, whenever it has looked like that a constitutional drama was coming close to an actual crisis, the situation has resolved: court orders were complied with, and Article 50 extensions were put in place, and so on.

Something gave way each time.

But.

What happens if the current Prime Minister Boris Johnson keeps refusing to resign?

As it stands he is the leader of a majority party, which he led to victory at the 2019 general election.

Since then he has had a collapse in political support, and in the last couple of days at least twenty members of the government have resigned.

It may well be that his own parliamentary party has another vote of confidence, which he may lose.

Or he may be told by senior backbenchers that he should resign, or face such a vote.

In normal times such a besieged Prime Minister would resign.

But what if Johnson refuses?

What if he says no to the delegation?

What if he refuses to quit after losing a vote of no confidence as leader of his party?

We would have a serious situation, certainly.

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First, however, we need to distinguish between his respective positions as party leader and as Prime Minister.

A successful vote of no confidence in him as leader of the Conservative Party does not – in and of itself – remove him as Prime Minister.

And from time to time, we have had Prime Ministers who were not party leaders.

So the leadership of his party could be taken from him – but that would not mean automatically that he would cease to be Prime Minister.

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There would then be a problem.

His parliamentary party could perhaps seek to force the issue and support a parliamentary (rather than a party) vote of no confidence – but that may risk Johnson seeking a general election (which a Prime Minister can ask the Queen for, now that the Fixed-term Parliaments Act is repealed.

Or they could join others in our society and go on strike, and refuse to support government business.

But other than that, and tutting loudly, there is little that the parliamentary party can do directly to remove an unwanted Prime Minister.

Indirectly, however, they can elect a new leader – and hope (and expect) that new leader to be invited by the Queen to form a government.

For it is only the monarch, in our system, who has the direct power to hire and fire a Prime Minister.

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But here we have another problem.

The Queen may have that power in theory – but Buckingham Palace would be reluctant to intervene in a politically controversial situation, such as a stand-off between the Prime Minister and his political party.

As this blog recently set out, there are the so-called Lascelles Principles, which are supposed to govern how the Crown would deal with, say, a request for a general election.

But the possible stand-off is not quite the same.

And – and this must be emphasised – the Australia crisis of 1975 still sends shudders through the walls of Buckingham Palace and it is uppermost in the collective memory of those who work there.

Again, there would be an attempt to have a quiet word – just as the chairman of the 1922 Committee will have tried.

But what if Johnson says no to the Queen?

*

Well.

We would be at the end of that particular constitutional road and the Queen will have to make the decision to invite someone else to form the government.

She would have to sack Boris Johnson, because she is the only one who can.

Of course, this is not what anyone would want, especially in her jubilee year and with her ill health.

But the constitution of the United Kingdom would offer no other choice.

For, however powerful the office of Prime Minister is, there is still something (theoretically) stronger: the power of the Crown.

And, as this blog has averred before: one useful function of the Crown is not so much in respect of the powers it does have, but the powers it prevents others from having – or exercising.

If the Queen did invite another to form the government, there would be nothing Johnson could do legally or constitutionally.

Indeed, there would be nothing for him to do – he would not need to actively resign.

One moment he would be Prime Minister, and the next moment he would not be.

The premiership would be stripped from him by automatic operation of the royal prerogative.

*

Of course, one would hope that Johnson would concede before that point.

But in the United States, his fellow populist Donald Trump has never conceded – and he chose to be away from the White House on the day of inauguration rather than be marched out of it as a trespasser.

Who knows what would happen in practice – whether the matter would get to the Queen or not.

It would certainly be constitutionally exciting.

Brace, brace.

**

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Our new national pastime is pretending that Single Market membership is not a good idea

5th July 2022

We have a new national pastime in the United Kingdom, to complement complaining about the weather.

That pastime is pretending that the United Kingdom should not rejoin the Single Market of the European Union, even though it is obvious that we should rejoin.

The completion of the Single Market, of course, was in its execution something which owed greatly to the British Conservative politicians of the day, notably Lord Cockfield and Margaret Thatcher.

An array of practical proposals were promoted by the United Kingdom to make it easier to buy and sell goods and services throughout the (then) European Economic Community.

The contribution to the completion of the Single Market is something about which that the United Kingdom generally can rightly feel proud.

But we now have to pretend we do not want to be members of it.

You will recall a sensible outburst from a current government-supporting MP Tobias Ellwood and the response to it from the very chair of the Commons’ Foreign Affairs Committee Tom Tugendhat:

https://twitter.com/TomTugendhat/status/1532445501563469824

This blog covered that exchange here.

Tugendhat is an ambitious politician – and so one explanation for him to not openly admitting Ellwood was right is that it would frustrate his political ambitions.

But.

It is not just Tugendhat.

Here is another ambitious politician, Keir Starmer, the Leader of the Opposition:

Starmer contends:

“Under Labour, Britain will not go back into the EU. We will not be joining the single market. We will not be joining a customs union.”

Here Starmer avoids mentioning Peppa Pig, but we get the following imagery instead:

“The second step we would take is to tear down unnecessary barriers. Outside of the single market and a customs union, we will not be able to deliver complete frictionless trade with the EU. But there are things we can do to make trade easier.

“Labour would extend that new veterinary agreement to cover all the UK, seeking to build on agreements and mechanisms already in place between the EU and other countries – benefiting our exporters at a stroke.

“There was a story on the news the other day about a ‘wet wipe island’ that has formed in the Thames. Made of fat and oil and household rubbish one metre deep and the size of two tennis courts, it is blocking the flow of the river and changing the shape of the riverbed.

“You couldn’t imagine a better metaphor for the Tory Brexit deal. They have created a hulking ‘fatberg’ of red tape and bureaucracy. One that is hampering the flow of British business. We will break that barrier down, unclog the arteries of our economy and allow trade to flourish once more.”

Fine words.

Yet describing a “hulking ‘fatberg’ of red tape and bureaucracy” is one thing, actually unclogging it another.

Starmer – like Theresa May before him – seems to think that a pick-and-mix approach will somehow work – with the European Union happily agreeing to discrete things that will perfectly suit the United Kingdom.

Perhaps that will work, but it is unlikely to do so.

The political truth is that from Northern Ireland to professional qualifications and veterinary services, there is a glaring solution to the problems.

Membership of the Single Market.

Tugendaht’s excuse is about the United Kingdom not wanting to be a rule-taker.

But.

We are a rule-taker – and one with added bureaucracy, just for us.

Of course, the European Union may not quickly allow the United Kingdom to again be part of the Single Market.

Would you, if you were the European Union?

Why would you chance having to deal with more of the United Kingdom’s psychodrama and collective political breakdown since 2016?

So, yes – membership of the Single Market may be currently unrealistic and unlikely.

Yet that is not an excuse for this continued pretence that it would not be in our interests.

The 2016 referendum question was silent on membership of the Single Market – and there are several European countries that are part of the Single Market and not members of the European Union.

It was only because of Theresa May’s extreme interpretation of the referendum result that the United Kingdom left the European Union on the terms that it did.

And so we all now have to pretend that membership of the very Single Market that the United Kingdom shaped and crafted is somehow a Bad Thing.

It is a silly position to be in.

And as this blog has previously averred, we will only “move on” from Brexit when we can have a mature discussion about the merits of sharing a Single Market with the regulatory super-power with its hundreds of millions of customers next door.

**

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That Chinese embassy tweet – on international obligations and moral hazard

4th July 2022

Here is a tweet from the Chinese Embassy in Ireland:

Well.

What did the government of the United Kingdom expect?

This is not to say there is equivalence between the two situations – and many may say that a false equivalence is being made.

And this is not to say that the government of China – with its often horrific record on human rights, including in respect of the Uyghurs – are somehow the ‘good guys’ for tweeting in this way.

Certainly not.

But.

Again: what did the government of the United Kingdom expect?

The government’s reckless determination to legislate so that it can unilaterally breach the Northern Irish protocol was always going to provoke responses like this.

A government that openly and expressly wants to breach international law – especially its own recently negotiated agreements – cannot credibly insist on other nations complying with their international agreements.

Similarly, the sustained attack on ‘European’ human rights law by this government also makes it difficult for the United Kingdom to insist on international human rights standards by others.

(This is a point I make today in more detail over at Al Jazeera – where I post regularly putting forward a liberal constitutionalist perspective.)

The United Kingdom now also appears to be considering breaking World Trade Organisation rules on steel subsidies.

The United Kingdom government is showing the same lack of respect to international rules-based regimes as it does to domestic rules.

But the more we denounce or deride or disregard international agreements and instruments, the more we are creating a needless moral hazard.

It is all so daft – and so dangerous.

*

In another universe, where the United Kingdom has also departed the European Union, a far more prudent government than the one we have currently would have spent the last few years building up its credibility as a party to international agreements and instruments.

After all, new international agreements are what the United Kingdom will need to rely on, now that it all alone on the world stage.

(Of course, such a prudent government may not have left the European Union in the first place.)

But instead of doing everything we can to build up our credibility as a potential partner to international agreements, we seem to have done everything we can to trash our international reputation as a serious party to international agreements.

And this was the worst possible time for us to convey such an insolent – almost infantile – attitude.

This is why we are now being trolled by the Chinese on social media.

And the United Kingdom government only has itself to blame.

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