Category: Constitutional Law

Hillary Clinton’s emails vs Donald Trump’s boxes of files – and the dangers of hyper-partisanship

 

You will remember the issue of Hillary Clinton’s emails.

She used a private email server during her time as Secretary of State.

You may also be one of those who formed the impression that a later statement by the director of the FBI on the issue led to Clinton losing the presidential election to Donald Trump.

You may also recall the chants of “lock her up” by Trump supporters in response to mentions of this email issue.

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Those in executive office, it would seem, should be careful about how they store information – else they could be breaching federal law.

Framed in those general terms, this description of what Clinton did wrong can cover what appears to be what Trump may have done wrong.

For today there was a search at Trump’s Florida residence by the FBI.

And the search was not for emails, but for classified documents, wrongly taken from the Whitehouse.

Hard copy equivalents of the electronic documents of Clinton.

But instead of clapping and cheering, as they did with FBI announcements about Clinton, Trump supporters are against this development.

So here was Trump-supporting Congressman Kevin McCarthy on Clinton’s emails:

And here is the very same politician on the search at Trump’s property:

There is no intellectually honest way that these two stances can be reconciled.

The only explanation for the two stances is hyper-partisanship.

And like many hyper-partisans, he has invoked constitutional arguments of first principle when it suits his cause, but does not apply them the same way against his cause.

It is this hyper-partisanship which is worrying.

Either the FBI should be free to look at Clinton’s emails or Trump’s boxes or they should not.

But to say one is good and the other bad signifies a partisanship that picks and chooses which basic principles should be complied with.

And as this blog has said before, constitutionalism is the notion that there are certain fundamental rules and principles that should govern political behaviour regardless of personal or partisan advantage.

The FBI should be left to get on with their investigation and to follow where the evidence takes them, without fear or favour.

McCarthy is right that there is an intolerable state of weaponised politicisation.

But it is coming from Trump supporters, and it does not bode well.

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The 3Ps, politics and Anglocentrism – or what should they know of Johnsonism and Trumpism who only Johnson and Trump know?

25th July 2022

“And what should they know of England who only England know?” was a question once posed by an imperialist poet.

One of the problems of commentary is insularity: you comment about what is familiar, with nods to things which are – you think – recognisable.

And so it is with law and policy commentary, even when (like this blog) one strives not to be Anglocentric and seeks to pay as much attention to (say) Edinburgh and Dublin and Washington and Brussels as to London and Birmingham.

In particular, one thing commentators seem to do is emphasise endogenous explanations – for example, about what the example of Boris Johnson tells us about the historic weaknesses of the United Kingdom polity and constitution – with a sideways glance at the United States

But Johnson is also a local manifestation of something happening in many countries.

Johnson is not the only one.

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In a fascinating and insightful new book The Revenge of Power, Moisés Naím – a former Venezuela trade minister and editor-in-chief of Foreign Policy posits the 3Ps:

“3P autocrats are political leaders who reach power through a reasonably democratic election and then set out to dismantle the checks on executive power through populism, polarization, and post-truth.”

In his preface he mentions a list of applicable politicians – and although Johnson is discussed in the book, he does not even make this primary list:

“We have in mind here Donald Trump, of course, but also Venezuela’s Hugo Chávez, Hungary’s Viktor Orbán, the Philippines’ Rodrigo Duterte, India’s Narendra Modi, Brazil’s Jair Bolsonaro, Turkey’s Recep Tayyip Erdoğan, El Salvador’s Nayib Bukele, and many others.”

In turn, the 3Ps are defined and illustrated:

“Populism may be the most persistently discussed of the three Ps and the most often misunderstood. Because it ends with “-ism,” it is often mistaken for an ideology, a counterpart to socialism and liberalism in the competition for a coherent governing philosophy. It is no such thing. Instead, populism is best understood as a strategy for gaining and wielding power.”

“Polarization eliminates the possibility of a middle ground, pushing every single person and organization to take sides.”

“In their current approach to post-truth, leaders go far beyond fibbing and deny the existence of a verifiable independent reality. Post-truth is not chiefly about getting lies accepted as truths but about muddying the waters to the point where it is difficult to discern the difference between truth and falsehood in the first place.”

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Of course, elements of all three are not new.

And we can self-indulge in a parlour game of “well, actually, there is this antecedent”.

Yet, the combination is a current phenomenon, made more potent by technological and political changes, such as the decline of parties and of traditional news media.

And it seems to be something liberals and progressives – and even conservative constitutionalists – are finding difficult to combat, or even comprehend.

And even though the Boris Johnsons and the Donald Trumps may personally leave office one way or another, the frames of mind with which they are associated are likely to linger.

The problem may therefore ultimately not be about the peculiarities of uncodified British constitution or its codified American counterpart.

The 3Ps were (are) going to be a problem whatever our constitutional arrangements.

It is not the fault of us not having a codified constitution any more than it is the fault of the Americans having a codified constitution that privileges illiberal and low-population states.

The problem is not (ultimately) constitutional or legal, but political.

It is about our sense as a polity: about what is acceptable in our political leaders, about what we value as checks and balances, and about how we believe political decisions should be made.

And because it is a political problem then it needs a political solution.

No constitution-mongering, by itself, will offer an easy way out.

The cases for liberalism and progressivism – and indeed constitutionalist conservatism – all need to be made afresh and in new ways.

Even seeking to place fundamental rights beyond the reach of 3Ps politicians will not be enough, as these politicians and their political and media supporters will simply politicise and discredit and trash the rights instruments, rather than respect them.

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It was never going to be inevitable that the world would become more liberal and progressive, and enlightened and tolerant – despite the triumphalism of some liberals and progressives in the heady halcyon (ahem) days of Clinton, Blair, Obama and the EU constitutional treaty.

That said, it is also not inevitable that the 3Ps politicians will win – their triumphalism may, in turn, also be ill-based.

So it is still all to fight for.

But.

In this contest, we should not think these are just local problems for local people.

The 3Ps politicians are part of a worldwide trend, and so we need to be aware of what works and does not work elsewhere – and not just in the United Kingdom and the United States.

Where has the case for constitutionalism – codified or not – been made successfully?

Where have people been made to care that their politicians are lying?

Where have voters and politicians valued checks and balances that may go against their partisan and personal advantages?

For, to adapt the poet:

“And what should they know of Johnsonism and Trumpism who only Johnson and Trump know?”

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Some of this is normal, and some of this is not

21st July 2022

One job of a commentator is to separate out what is normal and what is not.

It is only by separating this out that you can reckon what is significant and what that signifies.

So over at Al Jazeera I have had a go at separating out what is (constitutionally) normal and what is not about the current political drama.

Please click and read here.

As you will see: that there is a change of Prime Minister between general elections is quite normal – and as this blog has noted many times, every single Prime Minister since 1974 has gained or lost office between general elections (or, for May and Johnson, both).

And it is also normal for the mid-term successor to be either a current or recent holder of one of the so-called ‘great offices of state’.

Since the Second World War, the incoming mid-term Prime Ministers have been: 1955 – Foreign Secretary; 1957 – Chancellor; 1963 – Foreign Secretary; 1976 – Foreign Secretary; 1990 – Chancellor; 2007 – Chancellor; 2016 – Home Secretary; 2019 – (very recent) Foreign Secretary.

So far, so normal.

A Prime Minister is going mid-term and will be replaced by either the Foreign Secretary or a (very recent) Chancellor.

Framed like this, the current political drama is normal, ordinary.

But it is not normal or ordinary, is it?

The current political situation is abnormal and extraordinary.

In the last few weeks we have had mass ministerial resignations and ministers openly attacking their government’s policy on television.

A Prime Minister who only in December 2019 won a mandate and a sizeable majority has been spat out because he was repugnant to the body politic.

And one measure of just how unusual the current political situation is just how close we came to the next Prime Minister not even being in the cabinet – or even a current or recent minister.

Such inexperience in an incoming Prime Minister can happen at general elections – neither Blair nor Cameron had been ministers before becoming Prime Minister – but it would be unusual midway during a parliamentary term.

Given the combustible politics of the current governing party – and the ongoing challenges posed by Brexit and other matters – one can only wonder what usual political events will happen before we get finally – and hopefully safely – to the next general election and – which our political system badly needs – a change in the governing party.

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Boris Johnson did not “see off” Brenda Hale – so why did he say that he had?

 

On 25 July 2019 it was announced that Lady Hale would retire as President of the Supreme Court:

The retirement was to be on 10 January 2020.

This retirement was because of the operation of the mandatory retirement age for judges, which in the case of Lady Hale meant she had to retire by when she became 75 on 31 January 2020.

Lady Hale’s retirement by 31 January 2020 was thereby inevitable.

There was nothing she – or anyone else – could do about it.

This retirement announcement was made the day after a certain Boris Johnson, the now departing Prime Minister, took office.

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Yesterday the now departing Prime Minister Boris Johnson said in the House of Commons:

“With iron determination we saw off Brenda Hale and we got Brexit done.”

But it was not Boris Johnson and his government that “saw off Brenda Hale” but the Judicial Pensions Act 1959 (as amended and unamended by subsequent legislation).

So what did he mean?

In terms of practical litigation, the statement also makes no sense.

The two key Brexit cases that reached the Supreme Court under the presidency of Brenda Hale – known as Miller 1 and Miller 2 – were cases which the government lost.

Indeed, Miller 2 – which held that Boris Johnson’s attempt to prorogue Parliament was unlawful – was when that unconstitutional antic was “seen off”.

So presumably he does not mean that, either.

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What I suspect he means is that he got “Brexit done” despite the various litigation attempts to shape, delay or frustrate Brexit.

The two Miller cases were, strictly speaking, constitutional cases where the judiciary upheld the rights of the legislature against executive overreach.

But the more ardent supporters of Brexit did not – and still do not – see it that way.

And there were certainly other – less well conceived – legal cases which sought to stop Brexit, such as the “Article 50 challenge” cases.

If this suspicion is correct, then Brenda Hale is being used by Boris Johnson as a shorthand for all the legal challenges and obstructions which were made to Brexit, real or imagined.

Or, alternatively, Brenda Hale is being used as a shorthand for all those constitutional checks and balances that prevented Boris Johnson doing as he wished with the ship of state.

If so, these interpretations would accord with something else the Prime Minister said yesterday:

“The Leader of the Opposition and the deep state will prevail in their plot to haul us back into alignment with the EU as a prelude to our eventual return.”

Perhaps it should not be a surprise that Boris Johnson would use the phrase “deep state” at the despatch box – a term used by certain political conspiracy theorists.

Perhaps him using that terms is an indication of the deep state we are actually in.

If the above is correct, then the meaning of what Johnson said yesterday is that he saw off the “deep state” in its judicial manifestation and got Brexit done, though the “deep state” in its other manifestations are now seeking to reverse Brexit.

This is not a healthy frame of mind.

And if this thinking (or lack of thinking) becomes more widely shared, it does not bode well for a healthy polity.

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Even if Boris Johnson was correct and that, in some meaningful way, he had “seen off” the President of the Supreme Court, then it would still be worrying that this was something any Prime Minister wanted to boast and gloat about.

Such gloating and boasting – well based or not – signifies a hyper-partisan approach to politics, the separation of powers and the rule of law.

As with other checks and balances in the constitution, Boris Johnson sees them as things to be defeated and for those defeats to be seen as personal triumphs.

Even though those who clap and cheer Boris Johnson in doing this would be the first to complain, from constitutional first principle, if an opposition politician such as Jeremy Corbyn or Keir Starmer did the same.

And imagine the sheer fury if any judge boasted and gloated that they had “seen off” Boris Johnson.

Boris Johnson’s conspiratorial hyper-partisanship is dangerous, and so it is a good thing that Boris Johnson is now going.

But just as Trumpism has continued in the United States even after Donald Trump’s departure from the presidency, the worry is that this Johnsonian frame of mind, with its deep state conspiracy-thinking and contempt for checks and balances, will linger.

For, if anything, that is what needs to be “seen off”.

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The lack of seriousness about policy, “mandates” and “collective ministerial responsibility”

18th July 2022

Today will be the hottest day, we are told, since records began.

It is strange to be living on such a historical day.

One would expect the “most [x] day ever” was some other time, with historical footage or monochrome photographs.

But no, it is today.

And on this hottest day since records began, we have current and very recent members of the government tearing into the government’s record in general and each others’ records as ministers in particular.

Confidential and private ministerial exchanges – easily outside the reach of even the most determined Freedom of Information request – are being casually and freely disclosed on national television.

And these disclosures are not being made because they pass some (supposedly) objective public interest test, but because such disclosures are to the personal and political advantage or disadvantage of particular candidates.

It is quite a spectacle.

If you were watching this – but were unaware of the doctrine of collective cabinet and ministerial responsibility – you would never guess such a doctrine existed.

Of course, this is a leadership election – and so perhaps one could contend that such a doctrine is suspended for the duration of the contest.

Just like the doctrine was suspended for the referendum campaign.

But.

It could also be contended that this spectacle is not an exception but indicative of a new (if temporary) norm.

When Prime Ministerial authority collapses, a cabinet full of ambitious politicians loses its only real source of discipline.

And until and unless there is another authoritative Prime Minister – and the signals from the current leadership debates are not encouraging – such public rows and confrontations may reoccur.

But there is perhaps a deeper problem.

Another explanation for the lack of collective cabinet and ministerial responsibility is a lack of seriousness about policy.

Instead of politicians being in office to implement policy, policy positions exist to promote the careers of politicians.

In this way, policies like words are the counters of the wise, but policy positions are the money of fools.

And it seems many current ministers do not care for many overall government policies to do with such issues as the economy, fiscal policy, and – notably on this hot day – climate change.

(They do, however, support – or say they support – the performative cruelty of the Rwanda deportations.)

This lack of overall commitment to government policy is especially significant given that this government is between parliaments.

As the fine columnist Zoe Williams observed about the most recent televised debate:

“Two points of unity in the hour: none of them would have Boris Johnson in their cabinet, should he ask to serve; none of them wanted an early general election.

“This is the crucible of their problem: they want to keep the mandate, while wholeheartedly disowning the mandated, and on what grounds, they have no clue.”

Williams is correct to highlight this tension, if not contradiction.

Even before Boris Johnson announced his departure as Prime Minister, this government was running out of ideas.

The most recent Queen’s Speech was an unimpressive affair, on any sensible view.

Brexit is still not “done”, and “levelling-up” is a slogan without substance.

And now, with Johnson gone, it becomes even less obvious what the governing party should do with the majority it obtained from the 2019 general election.

At least with Johnson in place, the purpose of that majority was to keep Johnson in place.

And now he has gone, even that personal and selfish purpose disappears.

Any new programme by the incoming Prime Minister will not have a general election mandate.

And if elements of that programme are controversial, then – given we are now at least over halfway through this parliamentary term – there may not be enough time to push contentious legislation through the House of Lords.

We may therefore end up with a lame duck government, unable to promote new policies and unwilling to face a general election.

This will also be in a period of weakened Prime Ministerial authority and a decline in collective ministerial responsibility.

And all this in the context of a cost of living crisis, war in Europe and ongoing climate emergency.

The general lack of seriousness about policy risks changing from being an irksome bug in our government to its characteristic feature, at a time where we most need seriousness about policy.

This is not looking good.

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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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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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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.

*

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’.

*

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.

*

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.

*

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.

*

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.

*

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.

*

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.

*

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.

*

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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