Category: Democracy, Elections and Voting

A close reading of Boris Johnson’s statement saying he is not standing for leadership

 

24th October 2022

Yesterday the former Prime Minister Boris Johnson provided a statement about not standing for the leadership of the United Kingdom’s governing Conservative Party.

I joked on Twitter that a close of reading of this statement was a joy – and I was then commanded by the highest of all temporal and spiritual authorities to do a post setting out why.

And so here it is.

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A close reading of any text has to have regard to the (seeming) intentions of the author, the content of the text itself, and the relevant context(s).

Here we have a resignation but not a formal resignation – indeed, there was not even a prior application, formal or informal, to which this is a sequel.

It is not any form of a required text – it was instead volunteered by its author.

This means that more regard has to be made to (seeming) intention and context than otherwise, as there are no formal, required “buttons” to “press” with its content.

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Now let us begin.

“In the last few days I have been overwhelmed by the number of people who suggested that I should once again contest the Conservative Party leadership, both among the public and among friends and colleagues in Parliament.”

See how the “I”s are buried in this sentence, so as to indicate that it is not really about him.

The references to “the number of people” and to “the public and among friends and colleagues in Parliament” is pretty much an exercise in duplication.

The author could have said more simply “In the last few days I have been overwhelmed by [encouragement] that I should once again contest the Conservative Party leadership, both among the public and among friends and colleagues in Parliament.”

But the author needs to emphasise the quantity of people, and so the double-egging of “the number of people”.

The “overwhelmed” also indicates that he is protesting too much – and, indeed, the context implies that he was instead underwhelmed.

He did not get enough support.

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“I have been attracted because I led our party into a massive election victory less than three years ago – and I believe I am therefore uniquely placed to avert a general election now.”

The author was once a winner, and it is important that this is emphasised and that the reader is reminded.

There was not just a “election victory” but a “massive” one.

And it was not now some time ago, back in 2019, but only “less than three years ago”.

But it is the last part which is most interesting, where the author puts forward a false proposition about an imminent general election.

There is no imminent general election – and there cannot be one without the governing party wanting one.

So this is misleading.

The author then protests that he is not only well placed but “uniquely placed” to “avert” this non-existent imminent general election.

He presents himself as The One – “uniquely”.

And he uses “therefore” when he means “thereby” – a neat and deft trick to make the proposition seem stronger than one bare assertion leading from another.

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“A general election would be a further disastrous distraction just when the Government must focus on the economic pressures faced by families across the country.”

The “further disastrous distraction” means, of course, that there was a previous “disastrous distraction” – and here he can only mean his own loss of office.

The necessary implication of seeing his own loss of office as a “disastrous distraction” is that he is not contrite about how he lost the premiership.

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“I believe I am well placed to deliver a Conservative victory in 2024 – and tonight I can confirm that I have cleared the very high hurdle of 102 nominations, including a proposer and a seconder, and I could put my nomination in tomorrow.”

Ah, the “well placed” line – a feature of a million job application letters, where the applicant cannot think of a better way of boasting that they are fit for a vacancy.

This follows the “uniquely placed” just two sentences ago, and it is saying the pretty much same thing: his electoral prowess.

Also note the passing mention of 2024, as for when this election should be.

Then we have “tonight I can confirm that I have cleared the very high hurdle of 102 nominations”.

Not just a hurdle.

And not just a high hurdle.

But a “very high hurdle”.

And he has “cleared” this hurdle.

This is energetic imagery.

The superfluous “I can confirm” – like the “therefore” in a previous sentence – is intended to make a proposition seem stronger.

Of course, in context, this is an unimpressive proposition, as his supporters have claimed for days that he had over a hundred nominations.

He is now reduced to claiming that he has managed 102 (or perhaps more).

The detail of “including a proposer and a seconder” gives an impression of desperation.

The crescendo of this sentence is “I could put my nomination in tomorrow” is an attempt to convince the reader and perhaps also the author.

Of course he could.

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“There is a very good chance that I would be successful in the election with Conservative Party members – and that I could indeed be back in Downing Street on Friday.”

Not just a chance.

And not just a good chance.

But “a very good chance”.

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“But in the course of the last days I have sadly come to the conclusion that this would simply not be the right thing to do. You can’t govern effectively unless you have a united party in parliament.”

But.

Having bigged himself up as the one who is “uniquely placed” to avert an imminent general election (which will presumably now have to take place) and “well placed” to give his party a general election victory in 2024, he now says it is not actually in his party’s interests for him to avert this looming defeat and claim this brilliant victory.

It would “simply not be the right thing to do”.

Why?

Because, he says, “You can’t govern effectively unless you have a united party in parliament.”

Seemingly gone is the “overwhelming” support he has in the party from the start of the statement, and gone also is the support that enabled him to “clear” a “very high hurdle”.

The support, in fact, is not “overwhelming”.

His candidature would split the party so much that he would not be able to “govern effectively” – even though he contends he is “well placed” to govern so effectively as to achieve a general election victory in 2024.

None of this adds up.

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“And though I have reached out to both Rishi (Sunak) and Penny (Mordaunt) – because I hoped that we could come together in the national interest – we have sadly not been able to work out a way of doing this.”

With “reached out” we switch in style from the hapless job application to irksome public relations verbiage.

The context here is that the other two contenders rebuffed him.

The framing of this sentence is to blame the other two contenders for rejecting his approach: they are the ones who are not thereby acting in the “national interest”.

He is the statesmanlike goodie, and they have let him and you down.

And you are to be “sad” at this outcome.

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“Therefore I am afraid the best thing is that I do not allow my nomination to go forward and commit my support to whoever succeeds.”

Hello, here is “therefore” again, seeking to add gravity.

Just sentences ago he had “come to the conclusion that [becoming leader again this week] would simply not be the right thing to do”, and now – separately – he is saying he has concluded because of another reason that “the best thing is that I do not allow my nomination to go forward”.

Given he had already decided this before “reaching out” it makes no sense for him to say that the rebuff is the reason he did not “allow” his nomination to go forward.

The author wants us to believe he is both a wise statesman and the unfairly scorned reject.

He wants both the credit for not standing and for others to be blamed for him not standing.

He wants the king-making cake, and to eat it.

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“I believe I have much to offer but I am afraid that this is simply not the right time.”

Well.

***

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Law and policy on a day of political chaos

14th October 2022

Well.

The word “chaos” – like “crisis” – can be overused in politics.

But on some days the word is apt.

A Chancellor of the Exchequer flew back after cutting short his meetings with the IMF in Washington only to be summarily sacked, and the government performed yet another U-turn on its “growth” mini-budget with what was a mini-press conference.

So much for policy instability – but it is the politics that has gone beyond mere instability into chaos.

The authority of the current Prime Minister within the governing party has simply collapsed.

They are simply not turning up any more:

The lack of authority is related to humiliation in the markets:

Perhaps this is the reason “Brexit” was named after “Grexit”.

These are not normal times, of course, but it is hard to see how the current Prime Minister can survive much longer in office – and even if she does, her authority is extinguished.

And when the Prime Minister’s power is low – let alone non-existent – then intense political instability will result until and unless another Prime Minister with authority can be put in place.

The centre cannot hold.

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Stepping back, we must remember that the office of Prime Minister has little formal power.

The name of the office barely features in the statute book – and for a good part of its history, the office had no statutory recognition at all.

The power of the office rests on two bases.

The first is the power that derives from the Royal Prerogative and other means of non-legislative power.

The Prime Minister can, in practice, hire and fire ministers, (again) call general elections, confer honours, set the policy agenda and chair the cabinet and cabinet committees.

But this executive power rests on the confidence of the Prime Minister’s politcal allies.

And once that respect is gone, it is gone.

The second power is that which comes from effective control of the legislature, especially in respect of matters on which there is a general election mandate.

Command of the House of Commons means control of the Finance Bills, and thereby mastery of revenue and taxation; and a general election mandate for a policy means that the House of Lords cannot needlessly delay or block the relevant legislation.

A Prime Minister with a substantial majority won at a general election has the greatest prize that the constitution of the United Kingdom can bestow.

And on paper, the current prime Minister has a parliamentary majority of about seventy.

But, as this blog recently averred, we now have, in political reality, a hung parliament.

The Prime Minister cannot even be confident that she could get a Finance Bill through the House of Commons unscathed, let alone any other contentious legislation.

And so, this Prime Minister has no authority in government and no control of Parliament.

It is only because the last few years have seen many other politically odd things that one can think that the current Prime Minister can survive another week.

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The striking thing about this political predicament is that it is entirely self-inflicted.

There was no objective reason – no requirement – for that mini-budget before the conference season.

And there was no good reason for the government to “press on” when it became obvious it had lost the confidence of the markets.

The reason they did so is not ideology – for as this blog contended not long ago, many successful politicians have been guided by ideology.

The problem with current Prime Minister is not that she has an ideology but that she seems to have nothing else.

One suspects that even now she has no sense of what actually she has got wrong: about why reality is not according to her political vision.

And so we have politicians who idolise “free markets” being destroyed one-by-one by the market.

It is quite a spectacle.

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We now get to see how our constitutional arrangements deal with yet another Prime Minister being forced from office between general elections.

It is not, of course, unusual for a Prime Minister to either take office or leave office between general elections.

As this blog has said many times, every Prime Minister since 1974 has either taken office or left office between general elections.

The unusual thing is now it is happening frequently, and we are now on our fourth Prime Minister since 2016.

The cause of this political instability is not that the governing party cannot obtain a majority – it has had a working majority between 2015-2017 and from 2019 onwards.

There is a deeper problem in the politics of the United Kingdom which means that even a governing party with nominal majorities is being relentlessly wrecked.

Brace, brace.

***

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The Scottish independence referendum case before the Supreme Court

12th October 2022

Yesterday and today there has been a fascinating case argued before the Supreme Court.

The case is about whether the Scottish parliament can legislate not for independence but for a non-binding referendum on the question of independence.

There is no dispute that actual independence is a matter legally reserved for the parliament in Westminster.

Nonetheless the Scottish government has come up with this clever wheeze of saying that even though the union is a reserved matter, there should be nothing to stop it holding an advisory referendum on the issue.

But the really clever wheeze is how they have framed this case so that it is being heard at the Supreme Court even without a bill being presented to the Scottish parliament let alone passed by the Scottish government.

The Scottish government has done this by means of a “reference” – which allows the devolved governments to refer questions directly to the Supreme Court.

This is unusual both legally and constitutionally, as the Supreme Court is normally an appellate court and not a court of first instance.

And so this is a rare occasion where the Supreme Court is acting, in effect, as a pure constitutional court, rather than just happening to hear an appeal of a constitutionally interesting case.

The Supreme Court website sets out the following:

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The reference is framed as being about whether it is open to the Lord Advocate to advise that a bill with such a provision can be brought forward – as set out in the Scottish government’s published case:

This is an ingenious approach.

And nobody knows if it will succeed – not least because there is no precedent to guide us.

The Scottish government needs to jump two hurdles.

The first is the jurisdictional hurdle of whether this is a question that can even be answered by the Supreme Court at this stage.

The second is the substantial hurdle of whether such an advisory referendum is within the competence of the Scottish parliament.

On the balance of probability, any party to litigation needing to jump two such high hurdles is unlikely to succeed.

But nonetheless this is certainly a case to watch with interest – and you should, if possible, watch the footage of the hearings linked to at the Supreme Court page.

My own personal view from having watched some of the hearing is that the Lord Advocate – on behalf of the Scottish government – put the case as well as it could be.

In particular, she explained the legal route that the Supreme Court could take should it want to do so.

In response, the United Kingdom government was less impressive, though this may just be my personal bias.

But little is likely to depend on the oral advocacy – the Supreme Court now has to digest the extensive written documents which have been placed before it by the parties, and that may take months.

So we may have some time to wait.

Whatever the decision, it will be interesting to read the court’s reasoning in this exceptional and potentially consequential case.

For we all know about “advisory” referendums, don’t we..?

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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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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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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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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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The Prime Minister who is not there – what happens when there is an absence at the centre of government

31st May 2022

“Yesterday, upon the stair,
I met a man who wasn’t there!
He wasn’t there again today,
Oh how I wish he’d go away!”

– from Antigonish, by William Hughes Mearns

The constitution of the United Kingdom is as much about absences as about content.

Other constitutions have gaps – for example the constitution of the United States does not mention judicial review, the key means by which the federal courts provide a check and a balance to the executive and the legislature.

But in the constitution of the United Kingdom, there are many more absences – things which are not there.

Take the office of Prime Minister – if you were only to look at the statute books, you would find little trace of the role and almost no express provisions conferring powers.

Indeed, until the early twentieth century you would find no legislative trace at all – even though the office had then existed for nearly two hundred years and been occupied by such powerful figures as Walpole, Pitt, Peel, Disraeli and Gladstone.

The power of the Prime Minister’s office comes from other elements of the constitution – by acting on behalf of the Crown (and thereby exercising the Royal Prerogative) and by having a majority in the democratic house of Parliament (which is important as Parliament is held to have legislative omnipotence with the doctrine of parliamentary supremacy).

The Prime Minister – or at least the governing party – can also often derive power from the electorate, with the notion of a ‘mandate’ if a party wins a majority of seats, and this mandate means that the non-democratic house of Parliament must yield when there is a conflict.

All this power – and for a position that, legally speaking, barely exists.

This means that the office can be pretty much what its occupant wants it to be.

For example, Boris Johnson when he became Prime Minister dynamically used the office in five ways to force through the Brexit withdrawal agreement and ‘get Brexit done’ :-

– he changed the policy from his predecessor;=

– he negotiated a revised agreement with the European Union;

– he then signed that agreement;

– he fought an early general election to get a mandate for his negotiated, oven-ready agreement; and

– he used his mandate and his overall majority to force the revised agreement through Parliament and into law.

Few Prime Ministers have used so many of the powers of the Prime Minister in so short a time.

But.

Since that agreement became law, the Prime Minister has become the proverbial dog that has caught up with the car.

It would appear Johnson does not now know what to do with the office – or with his majority.

And remember – a substantial Parliamentary majority is the greatest prize which the constitution of the United Kingdom can bestow on any Prime Minister – and it is not as common as you would think.

Indeed – after John Major lost his working majority not longer after the 1992 general election, it was not until 2015-17 and after 2019 that the Conservatives had an overall majority; and since 1977, Labour has only had an overall majority between 1997 and 2010.

What has the Prime Minister done with this overall majority, which has flowed from the Brexit referendum result for which he campaigned and the General Election at which he promised to get Brexit done?

Almost nothing – and, indeed, the ongoing politics of the Northern Irish Protocol show that he did not even get Brexit done.

Johnson has gone from using the office of Prime Minister to the full to doing almost nothing with it.

The last Queen’s Speech – like a football team defence not impressing Alan Hansen – was all over the place.

The nasty ‘anti-woke’ noises from various ministers do not indicate a programme, but a lack of one.

The government is at one a high-spending, large-state levelling-up government that also now, somehow, wants to substantially cut the civil service.

A government that thinks nothing of partying at Number 10 while imposing the most illiberal restrictions on the rest of us ever known in peace time.

The only theme is that the government will pick fights with and seek revenge on any entity of the state which offers any check or balance.

This is not ultimately about a government or a Prime Minister, but about the lack of a government – and a lack of a Prime Minister.

And so, match our constitution of absences, we now have a government of absences, and a Prime Minister who may be in office, but who is not really there.

Perhaps it is time for him to go away.

*

“Yesterday, upon the stair,
I met a man who wasn’t there!
He wasn’t there again today,
Oh how I wish he’d go away!”

**

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The only ultimate solution to the problem of the Northern Irish Protocol may be a united Ireland

20th May 2022

Sensible conservative-unionists – and, no, that is not necessarily a contradiction-in-terms – used to abide by the maxim that politics was ‘the art of the possible’.

And one thing that the European Union did was make certain things possible, which otherwise were not possible.

With Gibraltar and Spain, for example, the border issue became less of an issue.

And with the island of Ireland, the border issue too became less of an issue.

Because both Ireland and the United Kingdom were both members of the European Union – and thereby both members of the internal market and customs union – a hard border, with infrastructure and bureaucracy, was unnecessary.

This created the conditions that made the Good Friday Agreement possible – though, of course, there were many other factors.

But now Brexit has come along, there is a problem.

There has to be a border somewhere where one entity is inside a pan-European internal market and customs union and the other entity is not.

Had Brexit not been so extreme – with the United Kingdom staying inside the internal market and/or the customs union (which is the position with some other non-EU states) – then the Irish border issue would be less of a problem.

But the Brexit which Theresa May insisted on, with the United Kingdom outside the internal market and customs union, meant there was going to be a problem.

May eventually realised this – and so she supported the ill-fated ‘backstop’ arrangement, which meant that – if there was no post-Brexit trade agreement – the cross-border arrangements of European Union membership would continue as a default.

But May’s proposal was rejected heavily by the House of Commons (including by ‘remain’ Members of Parliament).

That left one other option – the border in the Irish Sea, which was supported by the new Prime Minister Boris Johnson, and enshrined (ahem) in the Northern Irish Protocol.

And, as this blog has set out many times, Johnson here changed the policy, negotiated the Protocol, signed the withdrawal agreement containing the Protocol, fought a general election so as to get a mandate for the Protocol, and rushed the relevant legislation through parliament.

Johnson could have not done more, as Prime Minister, to have brought the Protocol into existence and to pass it into law.

But.

The Protocol is a solution to one problem but not to another.

It is a solution to the political problem of late 2019 where Brexit needed to be ‘done’ – and the Protocol was the only possible way to do so avoiding a hard border on the island of Ireland.

But it is not a solution to the deeper problem of how Brexit is compatible with the on-going existence of the union that is the United Kingdom of Great Britain and Northern Ireland.

Either one has Brexit (at least without continuing membership of the internal market and the customs union) or one has that union, but one cannot easily have both.

This is not to say that a united Ireland is likely – there are many solutions to political problems that never are adopted.

It may be that the problem continues, and continues, and is never resolved.

But a united Ireland is the only ultimate solution to there not being a border somewhere in respect of the north of Ireland.

Of course, special arrangements would need to be made for the non-nationalists in Northern Ireland – and one would hope that those protections serve that community better than the (lack of) protections for the nationalists in the north of Ireland after 1922.

Having watched Brexit from the beginning, I am still bewildered why supposed unionists did not see this problem coming – and indeed strongly campaigned for Brexit.

The European Union provided a means by which Northern Ireland could have continued in the United Kingdom, regardless of demographic changes and the gradual fall in unionist support.

But some forgot that politics was the art of the possible, and they pursued the politics of the impossible instead.

 

**

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The real problem with Beergate – and with Partygate

9th May 2022

There are many ways to look at the ‘Beergate’ political story – about the police investigation into what Leader of the Opposition did and did not do at (or after) a campaign function.

One way is to follow the political soap opera – and to ponder if the Leader of the Opposition will resign if he faces a penalty, if this will then backfire on the government supporters who have made this such a political story, and if voters will get tired and dismiss this and ‘Partygate’ with the shrug that says ‘they are all the same’.

Another way is to anxiously scrutinise the applicable law and to query whether the gathering was for work purposes or not.

And there is a third way, which requires stepping back to wonder if something more significant is going on.

Do ‘Partygate’ and ‘Beergate’ signify a shift in standard political tactics towards using reports to the police of one’s political opponents and encouraging investigations and sanctions?

For it is one thing to campaign against one’s political opponents.

But it seems another to actively seek that they face police attention.

Of course, from time to time – and in a society under the rule of law – politicians will get arrested, prosecuted, convicted and punished.

And that can be in respect of ‘political’ offences – such as regulate electoral matters – or more straightforward criminal activity.

Sometimes such investigations may have potentially important political implications – such as the cash for honours scandal about fifteen years ago, or the more recent parliamentary expenses scandals.

But in each of these cases, the involvement of the police seemed exceptional – and not part of the mundane, day-to-day politicking of Westminster.

And generally it seemed police involvement was not weaponised for political advantage (though there were one or two exceptions of minor Members of Parliament who liked referring matters to Scotland Yard).

Now, however, police involvement could not be more central to politics.

The fate of the Prime Minister and of the Leader of the Opposition depend, in part, on exercises of police discretion.

Not even a court is involved – just decisions of police officers as to whether it is reasonable to believe covid rules were broken.

(It would only become a matter for the courts if those police decisions are not accepted.)

Perhaps all this is just a one-off – just an extraordinary result of intrusive pandemic regulations that are no longer in place.

Or perhaps this marks a shift to using police involvement as a regular aspect of political activity.

So before we get carried away – one way or another – with clamouring for penalties to be imposed on which politicians you like least, perhaps we should think about where this is going.

For it may not be a good place for our politics to go.

**

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