Category: Constitutionalism

The remarkable fall of Boris Johnson – and what it tells us, if anything, about our constitutional arrangements?

19th June 2023

In December 2019, Boris Johnson had the greatest prize that our constitutional arrangements could bestow.

He had led his party to a substantial majority at a general election; his party had the mandate for its proposals in its manifesto; he had the command of his cabinet and his party; and he had even stripped out of his parliamentary party many more moderate Tories.

The opposition was in disarray, and the official opposition had had one of its worst election results in its history.

Few, if any, prime ministers have even been in such a strong position.

He had the prospect of at least one parliamentary term, perhaps more.

Yet now, less than one parliamentary term later, Johnson is not only out of government, he is out of parliament.

There is no comparable downfall in our parliamentary and political history.

Perhaps this story can be understood in purely personal terms: that Johnson was the author of his own downfall.

But.

Just as every politician gains power in a particular constitutional context, every politician who loses power also does so in a particular context.

Had some things been different, had certain events and processes take another course, Johnson could well still be prime minister.

Johnson may well have willed himself into power, but he certainly did not intend to lose power.

A sequence of events meant that it became outside of his control as to whether he could continue to be prime minister, and a further sequence of events meant that it became outside of his control as to whether he would “beat” the privileges committee.

The constitution of the United Kingdom regurgitated Johnson from our body politic and spat him out.

(And the the constitution of the United Kingdom then also regurgitated Elizabeth Truss from our body politic and spat that prime minister out too, though not as far.)

Had our constitutional arrangements been more rigid – more fixed, perhaps codified – it may well be that it could have been harder to get rid of Boris Johnson from government and then from parliament.

For, to repeat, after the last general election, Boris Johnson had the very greatest prize that our constitutional arrangements could bestow, and it is difficult to see how that prize could have ever been formally wrestled away from him by any codified procedure.

Our constitutional arrangements certainly could be a lot better in so many ways – but on the specific question of the ejection of Johnson: could our constitutional arrangements actually have been better?

And if that question seems to you to have a complacent premise, there is then the far more worrying, far less complacent question: what does it say about our constitutional arrangements that such a figure was ever able to get the greatest prize our constitutional arrangements could bestow in the first place? 

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Telling the story of how the “serious disruption” public order statutory instrument was passed

14th June 2023

Here is a story about law-making told in different ways.

The law in question is a statutory instrument made under the Public Order Act 1986 – the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – which comes into force tomorrow.

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By way of background

A statutory instrument is what is called “secondary legislation” and it has the same effect as primary legislation, as long as it is within the scope of the primary legislation under which it is made.

Statutory instruments are, in effect, executive-made legislation.  They still have to have parliamentary approval, but they are not open to amendment and rarely have debate or a vote.

Often the parliamentary approval of statutory instruments goes through on the nod, but sometimes they need to have a positive vote in favour.

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The government’s version

The first way of telling the story is from the government’s perspective.

The statutory instrument was put to a vote in the House of Commons on Monday with the Home Secretary herself leading the debate.

At the end of the debate there was a contested vote, which the government won:The (elected) House of Commons having shown its approval, the House of Lords did not pass a “fatal” motion against the statutory instrument.

Instead the House of Lords passed a motion (merely) regretting the Statutory Instrument:

The vote (against the government) was as follows:

The House of Lords also had a specific vote on a fatal motion, which was defeated:
And when the official opposition was criticised by for not supporting the fatal motion, a frontbencher was unapologetic:

And this is the first way of telling this story: there was a Commons vote; the Lords showed disdain but did not exercise any veto inn view of the Commons vote; and so the statutory instrument became law as the result of a democratic legislative process.

Told this way, the story is about how laws can and are made by such a democratic legislative process

Nothing to see here.

But.

But but but.

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The constitutionalist version

There is another way of telling this story.

This account starts with the Public Order Act 2023 when it was a bill before parliament.

At a very late stage of the passage of that bill the government sought to amend it so as to include provisions that were substantially similar to what ended up in the statutory instrument passed this week.

The government failed to get those amendments through the House of Lords. and so they were dropped from the bill before it became an Act.

As a House of Lords committee noted:

The Home Office could not answer these basic questions:For this committee to say that it believes “this raises possible constitutional issues that the House may wish to consider” is serious stuff.

What had happened is that the Home Office, having failed to bounce parliament into accepting these amendments into primary legislation by very late amendments, has come up with this alternative approach.

Told this alternative way, the story is not about how laws can and are made by a democratic legislative process.

Instead, the story is about how a democratic legislative process can be frustrated and circumvented by the executive.

Instead of using primary legislation so as to make substantial (and illiberal) changes to the law, the government has used statutory instrument which cannot be amended or considered in detail, and has used its whipped House of Commons majority to face down Lords opposition.

Plenty to see here.

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The story may continue

Yet this is not how the story (told in either way) may end.

The thing about statutory instruments is that, unlike primary legislation, they can be challenged at the High Court.

This means that there can sometimes be a sort of constitutional see-saw: the convenience of using statutory instruments (as opposed to primary legislation) can be checked and balanced by an application for judicial review.

And that is what the group Liberty is doing, and its letter before claim is here.

In essence, the argument is that – notwithstanding the parliamentary approval – the statutory instrument is outside the scope of the relevant provisions of the Public Order Act 1986.

Liberty seems to have a good point, but any challenge to secondary legislation is legally difficult and it is rare that any such challenge ever succeeds.

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The moral of the story?

The moral of the story, however it is told, is perhaps about the general weakness of our constitutional arrangements in respect of limitations placed upon rights and liberties.

A government, using wide enabling legislation, can put legislation into place that it cannot achieve by passing primary legislation.

This cannot be the right way of doing things, even if Labour is correct about these illiberal measures having the support of the House of Commons.

There are some things our constitutional arrangements do well – and here we can wave at Boris Johnson and Elizabeth Truss having both been found repugnant and spat out by our body politic.

But there are things our constitutional arrangements do badly – and the increasing use (and abuse) by the government of secondary legislation to do things they cannot (or will not) get otherwise enacted in primary legislation worrying.

And a government casually and/or cynically using (and abusing) wide enabling powers is not a story that usually ends well.

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What if acceptance of Boris Johnson’s resignation from the House of Commons had been delayed – or even refused?

12th June 2023

For a brief, wonderful moment today it seemed that yet more constitutional drama could be squeezed out of the ongoing antics of former prime minister Boris Johnson.

On Friday Johnson announced his resignation from the House of Commons:

“So I have today written to my Association in Uxbridge and South Ruislip to say that I am stepping down forthwith and triggering an immediate by-election.”

Some (including me) took his deftly worded statement to mean that he was resigning as a Member of Parliament with immediate effect.

But look where “immediate” is actually inserted in his statement.  Clever.

In fact, Johnson did not resign from the House of Commons on Friday.

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Of course – strictly speaking – a Member of Parliament cannot “resign” – though there is no point in making this distinction in general commentary.

What a voluntarily departing Member of Parliament has to do is to place themselves in disqualification from sitting in the House of Commons.

And in practice, this means applying for and being appointed to one of two ancient offices for profit.

This is section 4 of the House of Commons Disqualification Act 1974:

In practice what this means is that a Member of Parliament has to make an application to the Chancellor of the Exchequer for appointment to one of these offices – and when the Chancellor of the Exchequer endorses the warrant of appointment, the parliamentary seat becomes vacant.

This, in turn, means – thought this is a distinct step – a writ for a by-election can then be moved in the House of Commons.

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This is what Erskine May, the parliamentary rulebook says:

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Usually, there is no problem with any of this pantomime – for usually such a resignations are one-offs and occasional.

And so normally the appointments gently alternate between the two ancient offices.

If more than two Members of Parliament resign at once – as when the Northern Irish unionist Members of Parliament did in 1985 – the appointments have to be staggered so that each office is nominally filled in turn.

These are the lists from Wikipedia of the most recent appointments to both offices, and the reasons for the Member of Parliament leaving the House of Commons:

And although the system does not really make much sense, and is based ultimately on a constitutional fiction (there is no pay – or profit – for holding the office), it works.

There may be no way of resigning as a Member of Parliament in a technical sense, but there is a means of doing so by employing some quaint, archaic mumbo-jumbo.

It is another example of how our constitutional arrangements miss the direct point, and so we have to have a charming work-around instead.

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But.

Earlier today there was the prospect of Johnson bringing excitement to another odd little constitutional corner – though here unwillingly on his part.

(And remember constitutional matters should not be exciting, they should be dull.)

What if…

…the Chancellor of the Exchequer did not appoint Johnson to one of these two offices?

What if, in effect, Johnson’s resignation from the House of Commons was delayed or even refused?

According to the fine experts at the House of Commons Library, it is possible for the appointment to be refused by the Chancellor of the Exchequer – thereby preventing the resignation from taking effect- though this has not happened since Victorian times:

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There is an argument that a Member of Parliament facing an imminent report into their conduct should not be able to resign and avoid any sanction.

And if, in such circumstances, the Chancellor of the Exchequer refused to make the appointment until after the Commons voted on the report and any sanction, it is difficult to see what Johnson could have done about it.

(Though it would have been fascinating and fun to see whether this exercise of discretion by a government minister was amenable to judicial review by the High Court.)

Johnson would have been forced to stay as a Member of Parliament while the privileges committee report was debated and any sanction voted on.

And it is hard to see how he could have avoided it.

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But alas, we shall not have this constitutional amusement.

For this afternoon Johnson resigned.

Johnson was appointed to the stewardship of the Chiltern Hundreds, and Wikipedia was updated accordingly.

So we will have to wait a bit longer for our next constitutional excitement.

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For more on this procedure, please read the excellent House of Commons Library briefing.

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Why we now don’t just have “proper” political scandals

23rd May 2023

Today in parliament, during a debate on an urgent question related to the conduct of the current Home Secretary, a backbencher asked a striking and thought-provoking question:

“What’s wrong with this country? We used to have proper scandals abour sex or money, or about PM’s invading Iraq…”

There is an answer to this question, though perhaps not the one he wants or expects.

The reason is that the informal and often hidden ways these sort of issues used to be dealt with are no longer followed.

The hyper-partisanship and opportunism of ministers – especially in the last five or so years – means there is now a general attitude of getting away with things.

The unseen checks and balances provided by self-restraint – the soft constitutional conventions, as opposed to hard(ish) constitutional law – are old hat.

Cummings and Johnson may well be gone – but their damage to our constitutional arrangements lingers.

And so – there being no other way to deal with, say, the conduct of the current Home Secretary – it has become a parliamentary and public matter.

There is nothing as a buffer before any mess-up becomes part of day-to-day politics.

And unless ministers relearn the checks and balances of self restraint – in a word, “constitutionalism” – then it may be that there will be a lot more time and attention on these not “proper scandals”.

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The significance of the resignation of Dominic Raab

21st April 2023

The end, when it came, was not pretty.  But then again, endings rarely are.

The resignation letter was extraordinary:

The impression was that the letter was drafted in a rush – the sort of draft one would put together to get something out of one’s system, before composing something more measured.

The letter was accompanied by a 1,100 word piece in the Telegraph which was published eighty-or-so minutes later:

As a published article, it presumably would have been commissioned, edited and lawyered before publication – and so it may have been written before the letter.

But it said much the same.

One remarkable thing was that both the letter and the published article were in the public domain before the actual report – presumably to “frame the narrative” as a political pundit would put it.

And then the report was published:

And it became obvious why Raab was so anxious to “frame the narrative”– as parts of the report were, as a lawyer would put it, “adverse”.

This did not seem to be the usual, coordinated exchange of letters with a prime minister, which one would expect with such a senior resignation.

Instead, it looked a mess.

And one can only wonder about how this mess relates to the unexpected delay from yesterday, which was when the report was expected to be published and the prime minister was expected to make a decision.

What seems plain, however, is that Raab was pressed into a resignation.

If so, there is a certain irony, as it was the threatening of unpleasant outcomes to people who did not comply with his wishes/demands which was the subject matter of some of the complaints.

It therefore appears that Rishi Sunak was more skilful in this cost-benefit power-play than Raab.

In his resignation letter, Raab twice warns of the “dangerous” outcome if he did not get to continue on his way.

But in practice, Sunak by being silent and not “clearing” Raab yesterday placed Raab in an increasingly difficult situation, where it was becoming obvious even to Raab that unless he resigned he would be sacked.

Some may complain that Sunak “dithered” – but another analysis is that this former head boy and city banker patiently out-Raabed the school-cum-office bully.

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Beginnings, like endings, are also often not pretty.  And rarely are they ideal.

But, at last, the Ministry of Justice is free from perhaps the worst Lord Chancellor of modern times.

(Yes, worse even than Christopher Grayling or Elizabeth Truss.)

Over at his substack, Joshua Rozenberg has done an outstanding post on why – in substantial policy and administrative terms – Raab was just so bad.

And on Twitter, the fine former BBC correspondent Danny Shaw has also detailed the many failings in this thread:

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The Ministry of Justice is in an awful state.

The departing minister’s obsession with prioritising symbolic legislation such as the supposed “Bill of Rights” and a “Victims” Bill – which mainly comprises the shallow sort of stuff too often connected to the word “enshrining” – was demonstrative of the lack of proper direction for the ministry.

And it is significant that it was only during the interruption of the Truss premiership, with a new (if temporary) Lord Chancellor that the barristers’ strike was resolved.

Joshua Rozenberg sums up that telling situation perfectly:

“We saw an example of Raab’s indecisiveness in the way handled the strike by criminal defence barristers last summer. Increasing delays — caused initially by government-imposed limits on the number of days that judges could sit — were rapidly becoming much worse.

“Raab seemed like a rabbit frozen in the headlights, unable to decide which way to turn. The problem was solved by Brandon Lewis, who replaced Raab for seven weeks while Liz Truss was prime minister. He simply paid the barristers some more money.

“It was not so much that Raab was ideologically opposed to making a pay offer. On his return to office, he made no attempt to undermine the pay deal reached by Lewis. It’s just that he seemed unable to take a decision.”

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Now decisions can be made.

Gesture-ridden draft legislation can be abandoned.

And the grunt-work of actually administering our courts and prisons and probation service can take place.

That grunt-work will also not be pretty, and the incoming Lord Chancellor will not get easy claps and cheers that come with attacking “lefty” lawyers and “woke” judges.

But a new start can be made, and all people of good sense should wish the new Lord Chancellor well.

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From ornament to instrument – how current politics are forcing constitutions to work in the UK and USA

6th January 2022

This is just a short post, prompted by the ongoing inability of the Republicans in the United States House of Representatives to elect a speaker.

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There is usually no problem in a speaker being elected: the first day of the new House of Representatives is usually a ceremony, attended by the smiling families of new congressmen and congress women.

But now we are on the third day of voting, because a group of hardline Republicans are contesting what would normally be a coronation.

Two years ago today (as I set out in last week’s Substack essay), the counting and certification of electoral college votes was also converted from being a mere ceremony to something far more politically vital.

Indeed, a plan was in place to use what was normally (again) a coronation into an opportunity for the defeated president Donald Trump to somehow retain office.

And over here, during the last days before the United Kingdom left the European Union, there was an attempt to use a prorogation of parliament so as to force through a no-deal exit.

That (purported) use of the prorogation was contested and then quashed by the Supreme Court.

But usually prorogations are dull and straightforward affairs, of little interest even to political obsessives.

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Our current volatile politics keeps converting dull and ceremonial elements of our constitutions into things that matter.

Our constitutional arrangements are being forced to work, where they previously only had to decorate.

To an extent this is a good thing: like all the functioning parts of a car occasionally being tested for a MoT test.

But it also may be a bad thing, as too much stress may mean that element of the constitution buckles and breaks.

Either way, it is certainly exciting.

But, as we know, constitutional law should not be exciting, it should be dull.

Day-to-day politics should take place within the parameters of a constitution, not constantly pressing on the edges, straining them as far as they will go.

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So this is what happens when we do not have a functioning Prime Ministership

20th October 2022

I have been a constitutional geek since about 1987 – from the time of the conflicts about the “community charge” legislation and then Maastricht up to the Brexit showdowns in parliament and the Supreme Court.

But I have never seen political chaos like yesterday – which is carrying on into today.

On the face of it, it could seem nothing much happened: there was a parliamentary vote which the government won.

There was yet another cabinet resignation in a year packed with ministerial resignations, and a Downing Street aide was suspended.

All pretty normal in these not-normal political times.

But.

The details from yesterday were extraordinary: a confidence vote which was not a confidence vote; the opposition party almost taking control of the parliamentary timetable; a three-line whip for the governing party to vote against a manifesto commitment; a large backbench rebellion; a former minister not asking a question in parliament in return for a suspension of that aide; a reported standing row between the departing Home Secretary and the Prime Minister; reports of physical violence in the voting lobbies; a Prime Minister wandering almost-lost through the same lobby unable to properly register her vote; the Chief Whip and Deputy Chief Whip resigning and un-resigning, and then reportedly threatening to un-un-resign unless a statement was put out by Downing Street in the middle of the night (at 1.33am); and so on.

Even Wikipedia could not keep up:

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Well.

All the drama from yesterday points to one thing.

There has been an absolute collapse of Prime Ministerial power.

The details from yesterday (and today) are effects, not causes.

They are the effects of there being an implosion in Downing Street, of there being a gap where a functioning Prime Ministership should be.

One way of reckoning the significance of a thing is to imagine what would happen if that thing did not exist.

But now we no longer have to imagine what would happen if we ceased to have a functioning Prime Ministership.

We can now see.

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This is not – yet – a constitutional crisis.

It is certainly a political crisis – indeed, it is an exemplar of a political crisis.

And it certainly is a constitutional drama.

But not all political crisis tip into constitutional crises.

This is not a constitutional crisis – but unless Parliament and the Cabinet sort it it out, it well could do

The essence of politics is conflict – and it is the failure to resolve those conflicts that can trigger a crisis.

Parliament and the Cabinet now need to act – swiftly – to restore a functioning Prime Ministership.

Until and unless a functioning Prime Ministership is restored there will be an accumulation of more unfortunate and dramatic political details.

And there will be worse: because once a Prime Ministership fails, the government itself will tend to fail; and unless Parliament can check and balance that failure, then Parliament itself could be seen to fail.

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Brace, brace – as this blog often says.

But alas that warning is too late for the Prime Ministership of Elizabeth Truss.

That has already crashed.

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A Prime Minister in Name Only

17th October 2022

For a good part of the history of Prime Ministers, the title of “Prime Minister” was informal.

Until the late nineteenth century it was not used in official documents and it was only in the twentieth century that, here and there, it began to leave a trace on the statute book.

It was a title that was used just to describe the most dominant minister of the day, the one who controlled the cabinet and had the confidence of parliament – usually the First Lord of the Treasury but sometimes not.

And if today one asked an alien looking down from space who was the Prime Minister of the United Kingdom, that alien would assume it was Jeremy Hunt.

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Billy the Fish and the Green Baize Vampire

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One of the features of our uncodified constitutional arrangements is that the power of the Prime Minister varies depending on individuals, events and politics.

The last three Prime Ministers before Truss all lost office between general elections and, as this blog has often pointed out, every Prime Minister since 1974 has either gained or left office between general elections (or, most recently, both).

But loss of office is not exactly the same as loss of power – our constitution is so flexible that not even loss of office is a requirement for losing power.

And what we have at the moment is power moving away from the nominal Prime Minister towards another figure in the Cabinet.

An allusion, in a playful way, to the distinction made by the greatest of  our constitutional commentators, Walter Bagehot, between the efficient and the dignified (or, here, undignified) elements of the constitution.

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Many assume there will have to be a general election in the current circumstances – and there certainly should be.

But if the cabinet and the government majority in parliament can accept the current arrangements then there is no way forward to an early general election.

And in the meantime, and like the personal tax rate reduction, any influence whatsoever of Truss over policy is “delayed indefinitely”.

For it is Hunt who has control over policy and has the confidence of parliament – and of the markets.

We now have a Prime Minister in name only.

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(Apologies to Billy the Fish and Billy the Kid and the Green Baize Vampire.)

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What Truss’s conference speech did not say

6th October 2022

The speech of the new Prime Minister Elizabeth Truss to her party conference in Birmingham yesterday was a short and fairly unmemorable affair.

To the extent it will be remembered it will be because nothing untoward happened, which is in contrast to the fiasco of the conference as a whole.

But.

The speech was perhaps significant for what it did not say.

There was little of the infantile “anti-woke” culture war stuff.

Brexit was also hardly referred to – just four insubstantial mentions.

There was no explicit mention of the Northern Irish Protocol, let alone any renewed threat to break international law – either by “necessity” or otherwise.

And human rights had no mention, other than a snippet about stopping “European judges” doing things which they probably cannot do anyway.

Lawyers were not mentioned expressly, though accountants were.

From a law and policy perspective there was little in the speech of substance.

And given we are now in the second half of the maximum term of this parliament, with the next general election nearer to us in time than the last one, then there is little opportunity for the Truss administration to do something fundamental to our constitutional arrangements.

Of course, an economics and policy blogger would have a different view.

And economics punditry will benefit from the government’s “growth” policies, even if the economy does not.

Perhaps there is still more constitutional drama – and perhaps even constitutional crises – ahead.

And we seem to do now have a de facto hung parliament – and they are always fun.

The current period of constitutional excitement may not yet be over.

But.

You would not know it from that lacklustre conference speech.

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Do we now have a hung parliament?

3rd October 2022

This is not a partisan blog, and long-time readers will recall that I was a fan of the hung parliament of 2017 to 2019.

My sentiments were, however, not shared by many in politics and that parliament came to an abrupt end in December 2019.

This was when the opposition parties – stupidly in my view – agreed to an early general election, which turned out to be on the issue of “getting Brexit done”.

And so the Conservatives got a majority of eighty.

To a large extent all what has happened in British politics since 2019 is not so much the fault of Conservatives, but the fault of the opposition parties in allowing it to happen.

But.

Just over halfway through the maximum length of this parliament, we seem again to have somehow reverted to what some now call a hung parliament.

Chris Bryant has got a point.

The governing party now, in reality, comprises the fifty Conservative Members of Parliament who voted for Elizabeth Truss in the first round of the recent leadership campaign, and about a hundred or so more who have or want ministerial office.

On the government backbenches you have figures such as Michael Gove and Grant Shapps, as well as Rishi Sunak and indeed Boris Johnson, and you also have the European Research Group and the Northern Research Group.

The governing party in the House of Commons is currently an unstable coalition.

This was most obvious in how the U-Turn in the abolition of the 45p rate came about.

Gove and Shapps said they would be against it, and so it was dropped.

Those Truss supporters who fantasised about what they could do with an eighty majority are going to be disappointed and frustrated with the actuality.

Not least because the majority has gone down because of by-election defeats.

Thirty-or-so Conservative backbenchers can now veto government policy – and they know that they can get their way.

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Johnson warned us against a hung parliament in 2019.

But it looks like we have got one anyway.

Let us hope it lasts, and that the government does not again get carried away with forcing things through just because it can.

Why and how this has come about will fascinate political commentators.

But from a liberal constitutionalist perspective, it is to be welcomed.

We are governed better when there is real parliamentary accountability and scrutiny – when the government cannot just assume it will get legislation through the commons.

Perhaps party discipline will reassert itself in the governing party, bringing this situation to an end.

Perhaps.

But in the meantime, let us welcome what appears to be a hung parliament again.

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