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.
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“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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